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NT v LT [2020] EWHC 1903 (Fam)

This case concerned an application for the return of K, aged 8, to Russia. The child’s mother, NT, applied for K’s return either under the Hague Convention 1980 or, in the alternative, under the inherent jurisdiction of the High Court.

NT and LT were both Russian. They had two children: L, aged 16; and K, aged 8. For most of their married life NT and LT lived in St Petersburg. K was born in London. The mother and children had relocated to London in 2014 when K was 3. In 2017 following separation, both parties issued cross applications for the children to live with them. The mother inviting the court to order that the children continued living with her in England and the father that the children live with him in Russia. Shortly before the final hearing and in April 2018, the mother travelled to Russia. On arrival, she was arrested on charges of bribery and remanded in detention centre in Russia. The father then moved to the UK and assumed primary care of the children. A final hearing went ahead before DJ Gibson in mid-2018 and a final order was made that the children would live with their father and spend extensive time with their mother. The father was granted permission to remove the children permanently to live in Russia. The final decision explicitly contemplated that this move would happen, that the children would become habitually resident in Russia and thereafter the Russian court would assume jurisdiction for them. The order also provided for K to attend a named school in St Petersburg from September 2018 and for L to attend a boarding school in England.

In September 2018, the mother plead guilty to the bribery charges and was sentenced to four years' imprisonment and fined. In September 2018, K started his school in Russia which he attended throughout the 2018 – 2019 academic year. K spoke to his mother on very few occasions that year while she was in prison. In July 2019, the father removed K from Russia for the summer holidays and unbeknownst to the mother began making enquiries of London day schools. On 21 August 2019 following a successful appeal, the mother's charge was reduced to attempted bribery and she was released from prison. Her revised sentence meant that she was to be recalled to prison when K was 14 years old.

In October 2019, K started at a London day school. In the same month, and unaware of where K was, the mother issued proceedings in Russia for the Russian court to determine the arrangements for K and L. The Russian court accepted jurisdiction in November 2019. In January 2020, the Russian court made a travel ban in respect of the children and invited the Russian embassy in London to commission a report about the children. The father responded to this invitation formally and commissioned a report which was prepared without the input of the mother or her lawyers. The report recorded the children's antipathy towards the mother and love of their father. On the basis of this report, the mother's application for an interim residence order was refused by the Russian court. In February 2020, the father issued proceedings in this jurisdiction and sought initially urgent PSOs in respect of the children. Cobb J hearing the urgent application made a provisional declaration that the English court could exercise jurisdiction and suspended DJ Gibson's contact order. Only in February 2020 was the mother finally provided with K's address in London. In March 2020, the mother issued proceedings under the Child Abduction and Custody Act 1985 incorporating Hague 1980.

By her application, the mother contended that K's father, LT, had wrongfully removed K from Russia or in the alternative has wrongfully retained K away from Russia in the Autumn of 2019. The first issue for Mr Justice Cobb was therefore whether prior to K's removal from Russia in July 2019 he was habitually resident in Russia. The mother contended that he had been. The father argued that K had not lost the habitual residence in England that he had until July 2018 and that he had never settled in Russia.

Finding that in July 2019 K was habitually resident in Russia, Cobb J noted that until the summer of 2019 K was in the primary care of his father who was highly likely to have been habitually resident in Russia. K lived with his father, step-mother and new half-brother just outside St Petersburg. He attended school in St Petersburg, was registered with a GP and was close to his extended family. 

Cobb J then went on to find that K's removal from Russia by his father was in breach of the mother's rights of custody. In referring to the description of 'custody rights' under Article 5 of the 1980 Hague Convention as including "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence", Cobb J noted that it had been established in domestic case law that the meaning of 'custody rights' was established by the 'autonomous' law of the Convention and is not by different national laws. He highlighted the importance of this principle for the autonomous meaning of 'custody rights' under the Convention to be clung to so as to ensure consistent and uniform application (see C v C (Abduction: Rights of Custody) [1989] 1 FLR 403; Re D (A Child) [2007] 1 AC 619; R v Secretary of State for the Home Department, Ex p Adan [2001] 2 AC 477 at [517]).

In determining whether the mother had rights of custody prior to K's removal from Russia, Cobb J was assisted by three expert reports on 'rights of custody' in Russia. He found that the time of K's removal mother did have custody rights with respect to K albeit she was incarcerated. These rights had been breached by the father in removing K from Russia without her consent.

Having found that that the Hague Convention 1980 was engaged, Cobb J went on to consider the Article 13 defences, namely:

a. whether there was a grave risk that the return of K to Russia would expose him to physical or psychological harm or otherwise place him in an intolerable situation;

b. whether K objects to being returned to Russia and has attained an age and degree of maturity at which it is appropriate to take account of his views;

c. If the 'grave risk' and/or 'child objections' gateways are passed, whether the court should exercise its discretion in favour of, or against, making a return order.

The judge found that while K would be upset at leaving England and his school since September 2019 that this does not render his return 'intolerable'. Cobb J did not believe that K would be likely to suffer the "severe degree of psychological harm which the 1980 Hague Convention has in mind" (per Lord Donaldson). The father's case under Article 13(b) failed.

In respect of K's views, Cobb J referred to the case law requiring the court to distinguish between 'objections' and 'preferences' on the part of the child. He noted what Black LJ (as she was) had said in Re M & Ors (Children)(Abduction: Child's Objections) [2015] EWCA Civ 26

"… the child's views have to amount to objections before they can give rise to an Article 13 exception. This is what the plain words of the Convention say. Anything less than an objection will therefore not do" [38].

Cobb J was satisfied that K has articulated an 'objection' to a return to Russia, a view of which it would be appropriate for the court to take account when reaching a decision.

Assessing the evidence of K's objections to returning to Russia, Cobb J concluded that K's antipathy towards Russia had not been powerfully or cogently expressed and that his objection to return was not an adamant or a strong objection. He found that K's views about return, or at least some of them, were not his own and had been influenced by his father. The father's counsel accepted that K was alienated from his mother. As a result, he did not consider that K's views corresponded with his best interests. Cobb J accepted the submissions made on behalf of the mother that K's relationship with her was unlikely to repair while they were living in different countries.

Cobb J concluded that it is in K's interests that he should be returned to Russia, where the fully-informed welfare-based decisions can be made in a court to which both his mother and father have ready access, have resources to fund appropriate representation and where they can litigate in their first language.  Of no small significance to his determination, Cobb J made clear, was that an order for return would reflect the policy of the 1980 Hague Convention. As a result of finding that Hague 1980 applied, the judge was not required to consider whether the inherent jurisdiction could or should be deployed in this case. He refused an application to stay his order noting the wording of Article 12 to return the child "forthwith". Cobb J agreed with MacDonald J's view expressed in BK v NK [2016] EWHC 2469 that a stay should only be granted in exceptional circumstances. Cobb J found those circumstances did not apply in the instant case.

Summary by Rachel Cooper, barrister Coram Chambers

Read the full judgment of NT v LT [2020] EWHC 1903 (Fam)  on BAILII