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CB v CB [2013] EWHC 2092 (Fam)

Mother’s application under the Hague Convention 1996 for the return of her 14 year old son who had remained in the UK following a contact visit to his Father – consideration of the defence under Art 13 of the child’s objection to the return

The Father was British and lived in the West of England. The Mother had dual Australian and British nationality. She had spent the early years of her life in Australia before moving to England. The parents married in 1999 and the child, K was born that year.

The parents separated in 2002, since when, K had lived with the Mother; in England until 2010 and thereafter in Australia. Contact was maintained between K and his Father in Australia and over the Christmas period of 2012 he came to the UK to visit the father, being due to return to Australia on 16th January 2013. K did not return, however, his father stating that he did not wish to do so.

It was held that there was no doubt that the retention of K in the UK was a wrongful one for the purpose of Article 12 of the Convention. K had been habitually resident in Australia and his mother had been exercising a right of custody there. The father's one and only defence to an order for K's return lay under Article 13, which provides:

"The Judicial or Administrative Authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

Peter Jackson J set out that the Court needed firstly to consider whether the various "gateway" conditions for the application of the defence were made out, and secondly to consider whether it should exercise its discretion to refuse a return order. The "gateway" conditions were (a) that the child genuinely objected to returning, as opposed to having a preference or strong expression of view, and (b) that the child was of sufficient age and maturity to make it appropriate to take account of those views. The judge made specific reference to the guidance contained at paragraph 46 of the opinion of Baroness Hale in Re M (Abduction: Zimbabwe) [2007] UKHL 55, and paragraph 66 of the judgment of the former President of the Family Division, Sir Mark Potter, in DL v H [2009] EWHC 3074. He summarised that the nub of the guidance is that the court must consider, not only the overall purposes of the Convention, but also the question of the child's welfare in the light of the strength, soundness and validity of the views that have been expressed.

K's Guardian had interviewed him twice during the proceedings. He considered him to be mature, perhaps slightly in advance of his chronological age, that he did not want to return and that his view came from the heart and in a balanced way. The judge received oral and written evidence from both parties as well as the Guardian, who opposed an order for K's return. He commented at paragraph 26 that the events of January 2013 were not "a naked abduction but something more complicated than that, which had its roots in K's earlier childhood and in the relationship between his parents."

The judge held that K did indeed object to a return and that his views, whether or not they were right, were rational and he had sufficient insight for them to be given considerable weight. He concluded that the court should exercise its discretion not to return him to Australia.  The difficulties to which that might give rise were in his view, obvious and the uncertainties and, quite probably, temporary nature of a return had also to be recognised. 

The judge therefore dismissed the mother's summons. He directed that the parents should agree the arrangements for K's future residence and contact by a set date, in default of which there would be a supplemental report from the Guardian and a short hearing to determine those issues.

Summary by Thomas Dudley,  barrister, 1 Garden Court Family Law Chambers


No. FD13P00119
Neutral Citation Number: [2013] EWHC 2092 (Fam)


Royal Courts of Justice
Wednesday, 10th April 2013


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B E T W E E N :

CB Applicant

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CB Respondent
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Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
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MR CHRISTOPHER. HAMES (instructed by Brethertons) appeared on behalf of the Applicant.
THE RESPONDENT appeared in Person.
(solicitor) appeared on behalf of the Guardian.
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1. This is an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980.  It concerns K who was born on 2nd February 1999 and is now fourteen years old. 

2. The applicant is his mother, who is thirty-five years old and presently lives in Australia.  She seeks an order for K's return to Australia and in particular to Western Australia, so that his future can be decided there.  That application is opposed by K's father and by his Guardian, Mr. Bob McGavin of the CAFCASS High Court Team. 

3. This is the final hearing of the proceedings, the matter having passed through several interim stages. 

4. The background briefly is that the father is British and lives in the West of England.  The mother is a national both of Britain and Australia, her father having been an Australian and her mother having been English.  She spent some early years in Australia before coming to live in this country. 

5. The parents married in 1999 and lived in the area where the father now lives, but unfortunately in October 2002, when K was three, they separated, divorcing in 2004.  Since the parents separated, K has lived with his mother in this country up to the end of 2010, although it is right to say that there were several periods of extensive foreign travel for K with his mother in the later years.  During that time K kept in contact with his father with whom he has an important relationship.  I have the impression that the state of affairs between the parents fluctuated, being difficult for some of the time and better at other points. 

6. In December 2010, when K was eleven, he left England and went with his mother to Australia for a trip that was intended to last for a year with the consent of the father.   The initial plan to go for a year was extended with the father's reluctant agreement to a second year, but the mother then wished to extend it for a further period of some two more years something to which the father had not yet given his approval by the time we reach January 2013.  

7. During the time that K was in Australia, the father maintained contact by making visits himself and there were also two occasions on which the mother returned in 2012 and K spent time with his father in England.  The second of these occasions began on 23rd December 2012 and on that occasion the mother and K came over for Christmas.  K spent some of that time with his father and was due (and indeed was promised by the father) to return on 16th January 2013. 

8. However, on 16th January 2013 K remained with his father.  His father refused to return him, saying that K did not want to go back to Australia with his mother.  This came at the end of a period of toing and froing in which K said different things to different people and on occasion to everyone together about what he wanted. 

9. The mother was not able to remain in England, but returned to Australia where she launched these proceedings in very short order and that is how the matter comes before the court. 

10. During the course of the proceedings, the mother has been represented, and on today's evidence extremely well represented, by counsel.  The father has presented his own case with his own mother being here in support.  K's case has been presented on his behalf by his Guardian and his solicitor, Miss Logan. 

11. As part of the enquiries the Guardian has interviewed K twice, on 20th February 2013 and 8th April 2013, and has filed a report after each interview.  He has observed K in his father's home, spoken to his mother by telephone and carried out certain other surrounding enquiries. 

12. That then is the general background.  Fuller details are set out in the helpful chronology that is as part of Mr. Hames' written presentation.

13. The matter that the court essentially has to decide is whether, in the circumstances to which I will refer in a little more detail, the application of the mother is defeated by virtue of one defence only under the Hague Convention.  There is no doubt that, at the time in January when K was due to return to Australia, he was habitually resident there and his mother was exercising rights of custody in respect of him.  There is, therefore, I find, under Article 12 of the Convention, that K was wrongfully retained in this country by his father at that time.  In the circumstances, in the absence of a defence under Article 13, an order for his return must follow.  The relevant part of Article 13 of the Convention provides that:

"The Judicial or Administrative Authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

There are therefore certain gateway conditions (as they have been called) which must be met if this defence is to be made out.  Firstly, the court must consider whether a child in fact objects to returning, distinguishing an objection from a preference or a strong expression of view.  Next, the court must consider whether the child is of sufficient age and maturity to make it appropriate to take account of those views. 

14. Having conducted that assessment, the court then goes on to consider a wider question in deciding whether to exercise its discretion to refuse to order a return or not.  I have been referred to a number of authorities which I mention for reference.  In particular the decision of the House of Lords in Re M (Abduction: Zimbabwe) [2007] UKHL 55 and the decision of the former President, Sir Mark Potter, in DL v. H [2009] EWHC 3074 (Fam). In those decisions, guidance on the exercise of discretion is helpfully set out and in particular I have been assisted by paragraph 46 of the opinion of Baroness Hale in the former case and paragraph 66 of the judgment in the latter case.  I will not lengthen this judgment by reading in that guidance.  The nub of it, as I understand it, is that the court must consider, not only the overall purposes of the Convention, but also the question of the child's welfare in the light of the strength, soundness and validity of the views that have been expressed. 

15. In this matter I have written evidence from the parents, which demonstrates their individual perspectives on this situation; but, on the question of a child's objections, I centrally have the evidence of Mr. McGavin.  He was very impressed by K who he describes as likeable, engaging, polite, well mannered, thoughtful and sensitive.  He considers that K is of a maturity that is appropriate for his chronological age or possibly, in some respects, a little in advance.  In relation to K's view, he reports that he is quite clear that he does not want to go back.  This is because he regards England as his home and considers himself to be British and not Australian, the majority of his family are here and he hopes that, in due course, his mother will also return.  He expressed a balanced view of the good and bad aspects of life in each country, perhaps a more balanced view in February than in April; but even this month he records to Mr. McGavin good aspects of his life in Australia and the people, both family and close friends, that he knows there.  Mr. McGavin says that he was struck by K.  He had not, in his view, been burdened by influence, still less by coaching; and he spoke from the heart, from his own experience and in a balanced way. 

16. Mr. McGavin made a number of particular points.  He accepted that the current arrangements with K having been in this country for less than three months are in their early stages, although settling, and that there is something to be said for the idea that there may still be a honeymoon period.  However, he emphasised that a large part of K's thinking was centred on his mother's quite strong rejection of what he saw as his home area.  While she sees it as an unsuitable environment, he does not, and being away from there has led to what Mr. McGavin described as profound feelings of loss.  Mr. McGavin drew attention to the currently tense situation surrounding K's relationship with his mother, which has made recent telephone contact awkward for them both.  He felt that this was likely to improve once the main decision had been taken. 

17. Mr. McGavin said that he was in no doubt that K objects to returning to Australia.  It is not that he objects to returning to his mother; indeed, if his mother was in this country he might choose to live with her for at least part of the time.  His objection was to being away from what he saw as his home area.  Mr. McGavin underlined that for him as a CAFCASS officer to make this assessment was a deliberate and considered conclusion and not one that he lightly arrives at. 

18. So far as the future is concerned Mr. McGavin was hopeful that K would settle further in England, but quite pessimistic about the situation that would exist if he was returned to Australia.  He believes that that would make K potentially very angry with his mother; that he might settle at a new school there, but he probably would not. 

19. Mr. McGavin's evidence, which extends beyond what I have just summarised, should be read as a whole.  I accept it.  He is extremely experienced in making assessments of this kind and his evidence was given with clarity and, I thought, with insight into this difficult situation. 

20. On behalf of the mother, Mr. Hames spoke to his written detailed presentation.  He does not seriously challenge the assessment that K objects to a return to Australia, but he makes a number of points deserving careful consideration about welfare issues with regard to the exercise of discretion and, expressed somewhat differently, as a counterweight to evidence about K's degree of maturity and insight. 

21. The mother's case is that K is a more vulnerable child than is suggested by others and that he has been manipulated by his father in a deceitful manner into not returning.  The issues that the mother raises can be listed in this way: 

• The fact that she has always been K's primary carer and that the father is inexperienced in this role.

• Further it is clear that, as the person who has had the most to do with K's upbringing, the mother is entitled to considerable credit for his many good qualities.

• She points to the father's relatively new found domestic arrangements, with a girlfriend, her own young son and a child on the way and the uncertainty that that might bring to K's life.

• She points to the difficulties that she has had in maintaining in contact this year by telephone with K, compared to the ease with which he saw his father over the years as she submits. 

• She points to K's somewhat uneven school career and the difficulties that he has had in getting on with his classmates, both in England and Australia, at different times.  K's current school situation is somewhat transient in that he is a year behind and in the lowest sets until he finds his level.  In contrast, the mother says that she has a new school lined up for K in Australia to which he was successfully admitted before Christmas. 

• She points to the losses of friendships and family in Australia.  Apart from herself, there is a great uncle there and some good family friends. 
• The mother further points out that K had mixed views as to whether he wanted to return to Australia as recently as January.  She says that he came down in favour of remaining here because of pressure, not only from his father and his father's family, but also from his maternal grandmother (her mother). She says that, at the moment, K is in a honeymoon period. 

All of these factors, the mother says, show that K does not and indeed could not have insight into what is really in his own best interests; that his views should be accordingly given less weight and that a welfare assessment would lead to the conclusion that he should return to Australia, following which, if he remained unhappy, she might return with him to this country.  If not, the Australian Court would be the court to make decisions and matters could, as she sees it, be done properly. 

22. My assessment of K's situation is that he has been asked to sustain a relationship with both of his parents, who he loves, across continents.  Whatever the rights and wrongs of what took place in January, the present situation arises from K's parents demanding too much of him.  The position that arose at that point was very distressing for everybody and indeed has been described by more than one participant as appalling, but I consider that the bigger picture demonstrates that this is a child who had been placed under stress that became impossible for him to bear.  I hope that both his parents reflect on that and take steps to make sure that it does not happen again. 

23. I have heard nothing of any significance to suggest that K's mother is not a good mother to him or his father a good father.  I have heard nothing seriously to suggest that the life that was on offer to K in Australia was not a good one.  He had the good care of his mother, good schooling, good friends and some relations who he likes.  Likewise, although there were probably equal difficulties in England, I have heard nothing to suggest that K's life here, both before and now, is not a perfectly good one.  Both have pros and cons and, as K will no doubt discover, life will not be entirely plain sailing in any environment that he settles in. 

24. I have no doubt, like Mr. McGavin, that K's views amount to objections to returning to Australia or that, in the light of his age and maturity, I should take them into account.  I agree with the submission on behalf of the mother that a boy in his position cannot be expected to see all aspects of the matter.  As I said in the course of the hearing, why should he when his parents cannot?  They, by separating and by failing to find a means of trusting each other, have at times allowed their own, no doubt quite understandable, priorities to cloud their ability to support their son. 

25. As to K's views about life in Australia and life in England, he may or may not be right; but his views are, in my judgement, perfectly rational.  He has a sufficient degree of insight, if not complete insight, for me to give them considerable weight.  It is quite understandable that he should regard home as this country and as the losses involved in a prolonged stay in Australia as being very great.  I would not dismiss any of the points raised by Mr. Hames on behalf of the mother, but these are all points that are broadly within K's grasp and he has formed his view about them.  At his age, his view deserves respect. 

26. I have considered, as I am required to do, the considerations that underpin this important Convention, which binds us by obligation to other States, in this case Australia.  Where that is concerned, I do not consider that the ties of this child with Australia are of the strongest nature though he was habitually resident there.  I consider it relevant that he was to go for a year and then for two years and then for whatever uncertain period the parents might or might not have agreed upon.  While I wish to express no detailed view about the behaviour of either parent in January, it is clear that this was not a naked abduction but something more complicated than that, which had its roots in K's earlier childhood and in the relationship between his parents.

27. Taking account of all these matters, in further considering K's welfare, I reach the conclusion that the court should exercise its discretion not to return him to Australia.  The difficulties to which that might give rise are obvious and the uncertainties and, quite probably, temporary nature of a return must also be recognised.  Valuing highly, as I do, the principal that in normal circumstances decisions about children should be taken in the country of their habitual residence, I find that the exception relied upon by the father and the Guardian has been made out in this case and that future questions concerning K's welfare should be decided in this court.  I will dismiss the summons brought by the mother. 

28. I will direct that, by a date to be included in the order, the parties are to agree future arrangements for K in terms of his residence and his contact with each parent both face to face and indirectly.  Failing agreement there will be a report by the children's Guardian on the issues between the parents and the matter will be listed before me with a short time of an hour or two sometime in the first three weeks in June.  That will enable any outstanding disagreements between the parents to be resolved once each of them, and in particular K, have had the opportunity to absorb the decision that the court has now taken.  The order will provide for that hearing to be cancelled upon the parties filing an agreement. 

29. Although this decision will be understandably bitter for K's mother who has given him so much, the responsibility for rebuilding falls, in my view, on both parents and possibly at this time unequally upon the father's shoulders.  It is not a solution for K in the long run to go from not seeing enough of his father to not seeing enough of his mother. That is not a stable foundation and, doing the work that he does, K's father will understand the importance of building solidly for the future.  I am optimistic that, given a little time and the help of the Guardian and of CAFCASS Legal resources, these parents will have the sense not to put K through any more contested legal proceedings.