Mr Justice Williams :
- On 15 June 2018, I gave judgment, [2018] EWHC 1643 (Fam), in relation to the father's two applications in respect of his son B. By those applications, the father sought an order under the 1980 Hague Child Abduction Convention for the return of B to Spain from where he was abducted in October 2014. He also sought to enforce orders in respect of B made by the Spanish courts in May 2015 and April 2016. In my judgment I concluded that a defence to The Hague Convention application was made out in that in September 2017 B was settled in England. That conclusion meant I had a discretion as to whether B should be returned to Spain or not. Given the unique circumstances of this case I decided that I should only exercise my discretion after a fuller welfare enquiry than would usually accompany such applications. The reasons for adopting that approach are set out in my earlier judgment but in summary I considered that the passage of time, developments in B 's life, but also that of W, and the fact that the mother's application to discharge care orders in respect of both W and B were due to be heard in the week commencing 23rd July meant that not only was a fuller welfare enquiry required, but also could be conducted in a relatively short timescale. I therefore adjourned the father's applications to be determined over three days; the 17th, 19th, and 20th of July. I also listed the mother's application to discharge the care order to be determined at the same time and vacated the hearing before Her Honour Judge Rowe QC in the West London Family Court.
- I gave extensive directions for the preparation for the adjourned Hague Convention hearing and the discharge applications in particular providing for the filing of an Independent Social Worker's report in respect of the mother because she opposed the return of B to Spain and in turn sought the discharge of the care orders in respect of both boys and a return of both boys to her care in Brazil. In contrast the father sought B 's return to Spain but did not seek an order in respect of W. The local authority oppose the discharge of the care order in respect of W proposing that he remain in his long-term foster placement where he has been thriving. They supported the return of B to Spain to live with his father. In the earlier hearing, B was represented by William Walker his Cafcass Guardian, whilst W who had been joined as a party was represented by the Official Solicitor. At the conclusion of the earlier hearing I made provision for the Official Solicitor to hand over conduct of The Hague Convention case in respect of W if he considered there was no conflict-of-interest between W and B. As Mr Walker was already appointed as W 's guardian in the discharge applications this appeared to make sense. It transpired that there was no conflict between W and B and so Mr Walker has represented both boys at this hearing. His position is that B should return to Spain to live with his father and that W should remain in long-term foster care.
- Thus, the stage was apparently set on Tuesday morning for a contested hearing in respect of both boys with the range of possible outcomes being wide indeed. Ms Fottrell QC and Mr Jones appeared again for the father. Mr Hames QC again appeared for the mother. Mr Perkins appeared for the local authority. Mr Gration appeared for both boys by Mr Walker.
- However, on Tuesday morning the mother did not attend court when the hearing commenced at shortly after 10.30am. Mr Hames QC on instructions told me that the mother was at NM Hospital receiving treatment for injuries she had sustained during an assault the previous evening and was unable to attend court. However, she had given instructions to her solicitor that she no longer sought the discharge of the care orders and accepted that both children should remain in foster care in England. She continued to oppose the father's application for B to be returned to live with him in Spain; her position being that she did not believe the father would promote contact and that she would not to travel to Spain for contact. Mr Hames QC sought an adjournment so that the full instructions could be taken on those issues but also in relation to the evidence that had recently been filed including the independent social work report on the mother herself. The mother had not attended her solicitor on Monday (16 July) to give instructions she being concerned to support Mr H's application in respect of his daughter which was being heard in the Bournemouth family court that day. The other parties expressed a degree of scepticism as to the mother's non-attendance but none opposed the adjournment and given the considerable narrowing of the issues and the concern over the mother's health I agreed to adjourn the matter so that it could be dealt with in the remaining two days allotted. I gave directions for the mother to file medical evidence in relation to her injuries and her ability to attend court.
- When the hearing resumed today the mother was still not in attendance and had not given any additional instructions to her solicitor other than those on Tuesday. However, a medical report had been obtained. Somewhat to my surprise it disclosed that the mother had attended the NM Hospital only at 12:24 PM on Tuesday, long after I had been told that she was already at the hospital. The medical report identified a superficial cut on her neck and that she was experiencing pain and tenderness. It did record that she alleged she had been assaulted with a knife and that it had been reported to the police. I was told that a crime reference has been given by the police. It seems clear that the mother has chosen over recent weeks to disengage from her lawyers, these proceedings and indeed to an extent from her children. She was due to see B for contact last Thursday but at 4:15 PM rang the social worker to tell her that she would not be attending. B was already at the contact centre expecting to see his mother and he was greatly distressed and disappointed that she did not attend, particularly because he had missed a school trip to KG that day in favour of contact with his mother. Regrettably this sort of behaviour by the mother is in keeping with her historic patterns of behaviour both prior to the abduction and subsequently and which led to the boys being taken into care in 2015. As a result of her disengagement, Mr Hames QC and his instructing solicitor Ms Mohajane, have been unable to advance much of a case on her behalf. I'm quite satisfied that they have (as I would expect from lawyers well respected in this field) done their utmost to engage the mother, to take her instructions and to advance a case in so far as they can on her behalf. It remained their position on the basis of the instructions they had received prior to today that the mother opposed the return of B to Spain to live with his father.
- The issues that I have had to consider are therefore far more limited than I anticipated on 15 June or indeed on 16 July. I do still have to determine the following:
i) In the exercise of my discretion should I make an order for B to return to Spain. The effect of such an order will of course be that B will live with his father in Spain because the father has orders from the Spanish courts which give custody of B to the father. Although for the reasons I gave in my judgment of 15 June, I have declined to enforce those orders in England as I noted that in no way affects the validity of those orders in Spain.
ii) If I do not order his return what orders, if any, should be made in respect of B and W. Conceivably this could include orders for contact in care, given that the effect of not ordering B 's return would be that he would remain in foster care, as would W.
iii) If I do make a return order how should that be implemented and what consequential provisions (in particular in relation to contact) should be made? A range of options were canvassed:
a) A return order with undertakings by the father setting out his proposals for contact between B and his mother, and B and W
b) A substantive order of this court made under the Children Act 1989 on the basis of the father proroguing jurisdiction. The purpose of such an order would be to seek to avoid any further substantive applications in Spain which conceivably the mother might seek to make if no substantive contact order were made.
c) In terms of implementing a return order:
i) Should the court immediately discharge the care order and replace it with a direction under section 5 Child Abduction and Custody Act 1985 requiring the local authority to accommodate B pending his return to Spain?
ii) Should the care order remain in place to be discharged upon B 's exiting the jurisdiction?
iv) If I do make a return order should any orders be made in respect of the contact between W and B; whether in respect of W 's contact to B under section 34 Children Act 1989 or in respect of B 's contact to W.
The Parties' Positions
Father
- The father invites me to make a return order to Spain to be implemented on Friday 27 July. Between now and then, he will have increasingly flexible time with B. The foster carer will travel with the father and B to Spain and the foster carer will remain in Spain for a couple of days to assist the transition. The father would prefer that B remain subject to a care order pending his return to Spain on the basis that the local authority retaining parental responsibility may provide an additional level of protection in respect of any possible abduction threat posed by the mother. Having said that Ms Fottrell QC was not strongly opposed to the care order being discharged sooner and being replaced by B being accommodated pursuant to section 5 Child Abduction and Custody Act 1985. In the meantime, he is happy to retain the temporary passport that was obtained for B today. He invites the court to make a full range of protective orders to ensure that B 's welfare and presence in this jurisdiction are maintained up until the point of departure.
- The father understandably maintains that the Spanish court retains full substantive jurisdiction over B and that it is neither necessary or appropriate for this court to make orders which extend beyond his return on 27 July. There had been discussions over whether the father might prorogue jurisdiction to England under article 12(3) BIIa in order to empower this court to make a full and final determination in relation to for instance contact matters. Having reflected on this the father took the view that it would be likely to complicate rather than simplify matters if that were to be done and so he has not invited me to assume substantive jurisdiction over B. The mother not being present, it would have of course not been possible for this court to do so given that she could not consent.
- The father submits that the court should trust him to stand by the commitment he makes in relation to B 's future relationship with W and with his mother. His proposal is this
B and W
- He will bring B to London twice per year most probably at Christmas and in the summer holidays. The local authority have agreed to fund the father and B's travel for this. During their period in England the father anticipates that B and W will see each other for a number of days with there being flexibility as to supervision and flexibility as to the length, location and his involvement in the contact. He would like to see W; he remaining attached to and fond of him given the history. He recognises that there will need to be flexibility in relation to these arrangements in particular because W's response to B going to live with the father may be complicated. The father is content to liaise with social services over the precise arrangements that are to be made.
- If in due course it is felt that B and W would benefit from seeing each other more the father will facilitate this. He is willing to accommodate at least another annual visit to England or if it is possible a visit of W to the father and B in Spain.
- The father also supports Skype contact between the boys. At present W 's care plan provides for such contact during school holidays and the father is willing to make arrangements for this to happen. B at present does not have his own phone and so the issue of the boys making direct contact with each other through social media is not yet a realistic one.
B and his Mother
- The father says that he recognises the importance to B of being able to have a relationship with his mother if she is prepared to have one with him. He says that having lived through the pain himself of not seeing B for four years, he would not do the same to the mother but more importantly he would not do that to B.
- He proposes that there be contact four times per annum; twice in London at the time they are visiting W and twice in Spain. He doesn't propose that W and B have contact with the mother together.
- The father remains very concerned about the abduction risk that the mother poses and his position is that all such contact will need to be professionally supervised in a centre. He says that the mother should fund such supervision but recognises that she might object to this and if finances became an impediment he says he would be prepared to meet the contact centre costs.
- He proposes that he will set up a dedicated contact email address for he and the mother to liaise over the arrangements for contact and that they should be confirmed some weeks ahead of time.
The Mother
- Mr Hames QC's hands are tied behind his back given the very limited instructions he has received from the mother since her disengagement with these proceedings. He told me that she had been in touch with her solicitor and with the social worker in the course of this morning and that she intends to go to contact this afternoon to see B. Her position remains that she does not trust the father to promote contact with B if B returns to Spain to live with him. She therefore opposes the return of B to Spain and prefers him to remain in foster care in England. If return is the outcome she does not invite me to make any provision for contact in Spain. She either cannot or will not travel to Spain she says at present. It is not clear at present whether she will remain in the UK or whether she will return to Brazil. Mr Hames QC therefore was unable to make any substantive submissions as to the form of the order or what should be included in it.
The Local Authority
- The Local Authority support the making of a return order in respect of B. They are satisfied that this is in his welfare interests and that would have been the recommendation in the event that this court had jurisdiction to discharge the care orders and make substantive orders. They are satisfied with that the assessments of the mother in particular the independent social worker assessment but also arising out of Ms Kyriacou's own assessment and the information that they have from the previous proceedings. The information indicates that the mother remains a serious risk to the children and has learnt nothing in the passing years.
- The arrangements for W are set out in his care plan and as the future for W is now agreed by all the parties I need not go into those further. There is genuine concern that despite W 's very generous statements as to the benefits for B of going to live with his father in Spain that his emotional reaction to the reality of it will be complex and will need careful management. His response to recent contact with his mother and what he perceived as a potential differential in treatment is an indicator of this. Both his foster carer and therapist observed his behaviour to become more difficult. The proposals for contact between B and W are also set out within their care plans and they are now effectively agreed along the lines outlined by the father above. The local authority have agreed to fund the father and B 's travel to England twice a year; they will decide further down the line whether they would fund more trips. They are not willing to commit to fund the mother's travel from Brazil. B's last contact will be with his mother next Thursday. His last contact with W will be (I think) this Saturday. It is proposed that the social worker will visit B tomorrow to explain the outcome of the court process. I'm told that B is assuming that he will go to live with his father in Spain and thus it will not come as a great surprise. By the time he sees his father on Saturday and his mother next Thursday he will therefore be aware of the outcome of this case.
- The local authority are concerned that the continuation of the care order up to the point of departure places them in some legal difficulties which arise from the statutory duties placed upon them in particular under the placement with parents under the care planning, placement in case review (England) Regulations 2010 and scheduled to paragraph 19 of the Children Act 1989. Therefore, Mr Perkins on behalf of the local authority propose that the care order is discharged immediately and replaced with an order pursuant to section 5 of the Child Abduction and Custody Act 1989 which requires the local authority to accommodate B pending his return. This means the local authority will not have parental responsibility but will have a duty to provide accommodation. Mr Perkins submits that injunctive orders preventing the removal of B from his school or from his foster care will be sufficient to address the abduction risk. As was pointed out in submissions the reality is that if the mother abducted B from care the remedies would be either a recovery order or a tipstaff's order or a complaint to the police. All of these remedies will be available to the father.
The Guardian
- Mr Walker has concluded after an in-depth consideration involving extensive review of the care papers and the evidence in this case as well as his meetings with the principal players and his observations of W and B that their welfare would best be promoted by W remaining in foster care and B returning to Spain to live with his father.
- Mr Walker is satisfied that the father is trustworthy in relation to the commitments he has made in respect of B 's contact with W and the mother. He therefore does not believe that undertakings or orders are required in this regard.
- On his behalf Mr Gration submits that the court can make orders under section 5 CACA 1985 and that nothing in the existing jurisprudence suggests any bar to that provision being used as proposed.
This Hearing
- Although at the commencement of the hearing on Tuesday and again today, the possibility of one or more witnesses giving oral evidence was mooted, in the event that did not turn out to be necessary. I've of course heard from the father, the mother, and Mr Walker extensively during the earlier hearing and reached conclusions as to the mother's and father's credibility and also as to the value of Mr Walker's analysis.
- For the purposes of determining this aspect of the case I have had the benefit of re-reading much of the earlier evidence in particular the father's statement of 13 February 2018 in which he set out his proposals for the care of B in Spain. I have read the independent social worker assessment carried out by Mr Horrocks, the independent social worker assessment carried out by Mr Boer, the social work statements in particular Ms Kyriacou's of 16 July, Mr Walker's reports in particular his recent report of 16 July the care plans and the party's position statements. I shall refer only briefly to the very extensive evidence contained within those documents.
- The father proposes that B will live with him at his house located at JO in the EC district of V. His parents live nearby, his extended family also live a 20-minute walk away within the V area. It is a large and very close family who get together regularly at the weekends. The paternal grandparents in particular are willing to help with B; for instance, collecting him from school to take him for lunch. The father says he is in good health has stable employment and income. He runs a number of companies and is in a good financial position to provide for B. He says that the B should be educated at a British or bilingual school given his life to date. There are two options: first the British School of V or second the E school. He would be able to continue his education and studies in English whilst learning Spanish as a foreign language. The schools have confirmed that they will give B any extra support that he needs. His work is flexible and he would be able to fit around B school hours with the assistance of his parents at lunchtimes. The father says that he very much wishes to promote B 's relationship with his half-brothers W and H and his mother. He says that having experienced a complete severance of his relationship with him he has no wish for that to occur to B ever again. He says that he is very aware that B finds himself in a very difficult situation and he is conscious of the effects that his unstable life has had on him. He has made enquiries in relation to psychologists and therapists in Spain and in particular in V who may be able to provide support. The father has already made arrangements for B to start private Spanish lessons and they are communicating better in that language now.
- The mother has not provided any up-to-date evidence of her position, in relation to her assertion that the father cannot be trusted to promote contact, therefore this must be drawn from her earlier statements which I have taken into consideration in my earlier judgment. Given that I accepted the father's honesty and his account in almost every regard and rejected the mother's account there is little that I can draw of assistance from her previous evidence about the father.
- Suffice it to say I'm satisfied that the father is genuine in his assertion that he will promote contact. Having seen him give evidence and having read much about him I consider it is in his nature to be child focused and to genuinely recognise the need that B has to have a relationship with his mother and with his brothers. I'm therefore satisfied that I can trust him to promote that and to make good the commitment which he has given to promote contact in the way outlined above.
- Mr Horrocks provided a report on 29 May 2018; it is a detailed and comprehensive report. Mr Horrocks had access to documents from these proceedings and the previous care proceedings and has read them. He's carried out interviews with the father and with his extended family. He has spoken with the British School and the E school. He visited the father's business premises. He witnessed contact between the father and B on 5 May. The essential conclusions are as follows:
i) The father is fully committed to parenting his son and has a strong support network involving his extended family and friends who all share this idea. He is an intelligent and capable individual who desires only the best for his son. He understands that B has had many difficult and damaging experiences and that there have been multiple changes in his life and recognises his needs for long-term stability in an emotionally warm secure family environment where B will feel wanted and loved.
ii) In his professional opinion the father has the abilities to meet all aspects of B 's practical and emotional care needs and he would be a suitable person to care for his son. He will provide B with a stable and loving family home and the whole extended family will play a significant role in ensuring that B becomes a part of the family unit. The father recognises that for B, his mother and brother are significant features and he will support contact between his son and mother and W although the security would need to be considered.
iii) The father has carefully considered all aspects of B 's developmental needs and whilst he recognises that his return to Spain will bring about a range of challenges for B not least the loss of everything familiar in his life he has considered options to minimise the impact of the changes and to ensure the rapid integration of B into Spanish life as part of the extended family unit.
iv) Mr Horrocks recommends that the father has the capacity to meet all aspects of the needs of B and to provide him with an emotionally warm and caring environment where he will feel loved and wanted.
- Although the mother is no longer pursuing the discharge of the care orders and the return of either boy to her care the report of Mike Boer (independent social worker) dated 12 July 2018 is still of some relevance. The essential conclusions are as follows:
i) The mother is a hard-working determined and proud woman who has faced adversity and who has attempted through her own resolve to meet the challenges she has faced. It would appear that on many occasions in order to avoid having involvement or perhaps interference from professionals, she's chosen to move to new locations and attempt fresh starts and that appears to have been her strategy over a period of years.
ii) The cumulative effect of this approach on the children has been to place them in ever-changing environments without the stability that children need. It has been assessed the children's attachments suffered as a result of their experience and there is evidence their behaviour has been affected.
iii) During the past two years the mother has been in Brazil creating the foundations of what she believes will be a stable home for W and B.
iv) The Brazilian assessments appear to have been largely based on the mother's self reporting and without the benefit of the evidence available to professionals in England.
v) It is clear that the mother does not recognise that she contributed to her children's misfortune and she thinks that by returning them to her they will recover from the harm she believes they have endured whilst being in care. She has shown little appreciation of the concerns expressed by professionals and for the most part rejects professional opinion. Generally, her ability to work in partnership with professionals appears poor as she does not see personal involvement as having been of any real help to her. It's difficult to see how the mother could be expected to meet W and all B 's needs when she has such different views and opinions to what is believed to be best for her children.
vi) Her plan is to move the children to Brazil immediately. Given that she's shown little appreciation of what her children's needs are and her lack of enthusiasm in working with professionals it must be questionable whether she would follow professional advice having left the jurisdiction. Even if she would remain in this country I would not have confidence that she will follow guidance and that is because the mother believes mostly in following her own wishes and beliefs and that has not served her children well. Mr Boer does not support her application to have W and B returned to her care.
- Ms Kyriacou's statement sets out some more recent events since the last hearing. On 25 June contact took place between W and his mother. It was mainly a positive session mainly due to the gifts she had given W. Prior to the contact he was very nervous and asked if he could leave contact early if he so wished. She arrived 10 minutes late and gave him a PS4 console and some shoes. On 27 June Ms Kyriacou received a telephone call from a social worker in D informing her that the mother was putting herself forward as a joint carer for Mr H's baby. Those proceedings concluded on Monday, 16 July with care and placement orders being made by the BD Family Court. On 29 June she was informed by W 's key worker that he struggled since having contact with his mother. He had thrown the PS4 console on the floor in a fit of temper and had been trying to squeeze his size 7 feet into the size 5 trainers she bought for him. He'd been telling everyone that he would now like to live with his mother because her house has a big pool and a large television and that she is rich and will buy him lots of games and food. He has had a negative attitude towards the care home staff and his behaviour had deteriorated both in terms of his attitude to staff to other children and making derogatory comments. On 2 July Ms Kyriacou received an email from W 's therapist saying that since the court case has been looming for W, they has noticed a deterioration in his level of engagement in therapy he is very defensive and rather disrespectful. On 6 July 2018 B was unable to travel to Spain for the weekend as had been planned because the Spanish consulate were unable to issue him with the necessary travel document. B was very disappointed and upset as the flight had been booked and his bag was packed. On 11 July B had telephone contact with his mother while she was at a hairdressers. She encouraged him to speak to other children and to answer their questions. B said he felt uneasy about being asked questions by people he didn't know. On 12 July the mother failed to attend a contact appointment leaving B very distressed and disappointed. It is noted that one of the mother's strengths is her capacity to display physical affection and so she can manage short-term contact. However, she's demonstrated very little insight into the impact of her actions on the children and thus is unlikely to be a to meet their needs in the future. There are significant risk factors in respect of her parenting. The local authority do not recommend a return of either boy to her care. In contrast they note that the father has had a positive assessment has been reliable and committed in contact and they support his application for a summary return of B to Spain.
- Mr Walker's most recent report builds on his earlier work which I considered at the last hearing. It is clear from his report that he has become deeply involved in the case and has carried out very extensive work both reading papers but also seeing contacts and speaking with the significant adults involved in W and B 's lives whether professional or personal. The following are some of the significant part of his report.
i) The reasons why the boys were taken into care were because of A) the mother's inability to meet and prioritise the needs of children, including health, schooling, and lack of supervision; B) domestic abuse between mother and her partners; C) mother's inability to provide safe, secure, and stable accommodation; D) the risk of exposure to drug abuse and sexual harm to the children.
ii) Experts in the previous proceedings assessed the dynamics between W and B and had a clear view that the siblings should not be placed together. It is evident that their separate placement in different homes has had a beneficial impact.
iii) In his discussions with the mother about the reports of Dr B, the mother demonstrated little insight into the concerns for the reasons why the children had been taken into care. She dismissed the professional opinion that the boys should not be living together. Mr Walker was concerned that by not being able to articulate what mistakes she had made in the past caring for W and B, it was difficult to see how the children would not again be placed at risk significant harm if discharged to the mother's care. He discussed the mother's decision to get pregnant in December 2017 and the potential consequences for her resuming care of W and B. The mother's response was worrying.
iv) Mr Walker observed contact between the mother and W. The overall quality of the contact was good. There was emotional warmth and close physical interaction between them. Mr Walker concluded that the mother was able to meet W 's basic needs over a short period of time and in a highly monitored environment. He was concerned though over her buying W 's loyalty with expensive gifts and promises of life in Brazil.
v) Mr Walker had not seen B 's contact with the mother. He had read the contact notes and spoken to the Independent Reviewing Officer. Her feedback was that the mother had not adjusted to B 's growing age and maturity and could not pick up on his cues.
vi) Mr Walker concluded that Mr AH was a concerned father who'd been deeply saddened by the years lost from being denied a relationship with his son. He concluded that the father demonstrated insight into the impact of a likely move to Spain by acknowledging that B would be confused about not being able to live with his mother and anxious about life in Brazil. He concluded that although the mother been able to progress her life in Spain and has been able to show some commitment through telephone contact and face-to-face contact, there is a running theme since 2015 around her lack of insight which causes great concern and uncertainty. He concluded that it's clear the mother had not taken responsibility for her role as a mother and this mirrored the opinion of Dr F from the Tavistock and Portman Centre who had identified a lack of insight in the mother.
vii) Mr Walker had concerns after speaking with the mother about how genuine she was about promoting contact with the father given her previous history, her allegations of domestic abuse and negative attitudes about him. In contrast the father had said he will do everything the court advises him to in order to promote contact. The father says that W is part of the family and is more than welcome to come and stay and visit as long as he wants to in Spain.
viii) W 's views as to what he wants have fluctuated. He had initially said he did not want to return to the care of his mother due to the uncertainty of living in an unstable and insecure environment. He has thrived on the stable environment he has been in recently. He is making progress in school education and personal therapy. Initially when Mr Walker saw him recently he said he wanted to remain at OC but he has been confused switching from wanting to live with his mother, with the father, or remaining in his current placement. This can change within a period of hours. When Mr Walker did the Three Islands exercise with W he puts Mr AH, H and B with himself on one island. On the visiting Island he put the mother, AH, H and B as well. He said he would feel quite sad if the court decided he was to live in Brazil with his mother. He said he felt okay if the decision was to remain at OC.
ix) B is said to present as a warm friendly and caring child who was settled well in his foster placement. All have been impressed with his progress since being in care. It is considered that he has a strong attachment with his carers. He enjoys school and gets on well with his teachers and has two good friends. Initially when Mr Walker interviewed B, his preference was to live with his mother in Brazil but B accepted if this was not possible he would want to live in Spain with his father. When he saw him second time his views remained the same although he was able to recall why he was in care. He said he would feel sad if he didn't live with his father and lived in Brazil but he felt the same if he didn't live with his mother. B said he would feel sad if he couldn't live with W and moved to Brazil or Spain without him.
x) Mr Walker saw W and B together. He said they instantly got on well and began to talk about the latest games. However, at one point they fell out because W accidentally hit him.
xi) W said that if B moved to Brazil or Spain sometimes if you love somebody you have to let them go it, and would be good for B to live with his father; if he had a father he would want the same.
xii) Mr Walker concluded that having separate placements has allowed the boys each to develop a secure base and attachment figures.
xiii) On the basis of all of his investigations Mr Walker concluded that B should return to Spain to live with his father and have contact with his mother and W. He concluded that W should remain in care.
The Legal Framework
Discretion
- Notwithstanding the court's finding an exception to return is made out, the court retains a discretion whether to return the child or not. The leading case is Re M (Zimbabwe) [2008] 1 FLR 251. The principles from that are:
(a) That discretion is at large. The court is entitled to take into account the various aspects of the Convention policy alongside the circumstances which gave the court the discretion in the first place, and the wider considerations of the child's welfare.
(b) The policy considerations which may be weighed against the exception 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.
(c) In settlement cases though it must be borne in mind that the major objective of the Convention cannot be achieved, they are no longer 'hot pursuit' cases. By definition, for whatever reason, if 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 that 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 include integration in a new community. A child's welfare cannot be made to suffer for the general deterrence of the Convention.
Implementation
- If a return order is made the court plainly has jurisdiction to make orders in support of that return. Earlier cases such as R-v-K (abduction: return order) [2009] EWHC 132 (Fam) addressed the jurisdiction under the inherent powers of the High Court. Since the coming into effect of the 1996 Hague Child Protection Convention it is clear that the court has jurisdiction under articles 11 and 12 of that Convention to take protective measures. In Re Y (a child) (abduction: Undertakings given for return of child) [2013] two FLR 649) the Court of Appeal confirmed that undertakings given to this court constituted measures which would be enforceable in another jurisdiction under article 11 of the Convention. In addition article 20 of BIIa confers on the court jurisdiction to take urgent provisional measures in respect of a child present in the jurisdiction and article 12 of the 1996 Hague Child Protection Convention gives the court jurisdiction to take measures of a provisional character for the protection of the person of the child which have a territorial effect limited to the state in question insofar as such measures are not incompatible with measures already taken by authorities which have jurisdiction under articles 5 to 10.
- Section 5 of the Child Abduction and Custody Act 1985 provides that
Interim Powers.
Where an application has been made to a court in the United Kingdom under the convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.
- The Court of Appeal has considered the extent of this power in Re-A (abduction: interim directions: accommodation by local authority) [2011] 1 FLR1. The Court of Appeal concluded that the section should be interpreted in a purposive way to support the aims of the convention and in particular article 7C of the Convention. I do not consider that the fact that section 5 refers to 'at any time before the application is determined, give such interim directions' excludes the court from making a direction at the same time as determining the application to secure the welfare of the child or to prevent changes in his circumstances pending the implementation of a return order. It seems to me that would be artificial and would permit of a situation where the child could not be adequately protected between the final order being made and implemented in contrast to the situation prior to the final order being made. In HA-v-MB (Brussels II revised: article 11 (seven) application) [2008] 1 FLR 289) Singer J took a similarly pragmatic approach to the interpretation of article 10 (G) (IV) and the ability of the English court to make a contact order at the same time as refusing to order the return of the child.
- I think it is also consistent with the decision of Mr Justice Ryder (as he then was) in R-v-K (abduction: return order) [2009] EWHC 132 (Fam) where he held that:
'...having regard to Hague Convention policy a principled approach to the same in the execution of this court's jurisdiction and the reasonable flexibility that should be permitted to the court in the exercise of its inherent jurisdiction to accept undertakings and give directions, I hold that there is a jurisdiction to implement a forthwith return order such that specified practical steps can be identified and provided for.'
It is also I think of significance that the approach outlined by Ryder J related to a forthwith return order pursuant to article 12. Where the return order is made in the context of a return ordered where the court has concluded that the child is settled it seems to me only logical that the court has even greater latitude in terms of the timing of the return and the directions that may be given.
- Given the local authority have invited the court to make the direction under section 5 Child Abduction and Custody Act 1985 I do not think I need to consider further the courts technical jurisdiction to deploy that section in this case. This case is plainly a highly unusual one both on its facts but also in the local authority inviting the court to make the order. It would have course be at least arguable that if section 5 did not apply that the court would be able to deploy Article 12 of the 1996 Hague Convention to same effect given the reasoning of the Court of Appeal in Re A.
Conclusions
- I remind myself that the decision that I am actually taking is whether to make a return order pursuant to the Hague Convention. It seems necessary to remind myself because the welfare evidence that I have heard is so extensive that one could mistake this for a substantive welfare decision. As it happens although I am not taking a substantive welfare decision, had I needed to do so I feel confident that I have had all of the evidence that I would have needed to in order to undertake that exercise.
- In considering whether to make an order for B 's return to Spain, I must take into account the policy reasons in support of a return, issues relating to B 's views and his settlement, and general welfare considerations.
- Although the abduction in this case took place some four years ago this was a flagrant example of an abduction in knowing breach of orders of the Spanish court and followed by concealment for a period of years. It is amongst the worst examples of abduction cases. Thus, although we are now long past the abduction, the policy of the convention still carries some weight. In addition the Spanish court has made orders and continues to exercise substantive jurisdiction, therefore the issues also point in favour of a return. The fact that I have declined to enforce those orders is not because I disagree with the substantive decisions reached by the Spanish court; I'm precluded from considering the substance of the orders. My reasons for declining to enforce them were because of the parameters of article 23 of BIIa.
- B was of course settled in this country in September 2017. At that point in time his mother was in Brazil and he was in foster care and had been for some two years. The position is now radically different. He has been reintroduced to his father and knows that he can live in Spain with him. Equally his mother is now back on the scene. Although he was settled in September 2017, I don't think he is settled now. He is very much alive to the possibility of living with his mother or father and does not see his future in any sense with his foster carers. Therefore, the settlement defence carries little weight in the discretion.
- Uniquely in my experience of Hague Convention cases I would be in a position evidentially to determine substantive welfare matters in respect of that B and indeed W. The overwhelming weight of the evidence set out above plainly demonstrates that B 's welfare will best be promoted by going to live with his father in Spain. He cannot live with his mother. He does not want to remain living in foster care. The principal advantage in him remaining in foster care would be maintaining perhaps a more regular relationship with W. However, the arrangements that have been made for contact will allow B and W to see each other on a regular and extensive basis. They will also be able to have indirect contact. Although B has said he would prefer to live with his mother, I see that as an understandable reflection of his life experiences. At his age though as an eight-year-old he is in a poor position to gauge objectively what is best for him. The life the father offers him in Spain has all the hallmarks of a fulfilling and nurturing life with an ongoing relationship with his mother and brothers on offer. I trust the father to fulfil his commitments. I reject the mother's case that he will not. I'm quite satisfied that the mother's lack of insight means that she poses an ongoing risk to B and W. If returned to her care (not that that is on the table now) there would be every probability that the pattern of the children's lives prior to 2015 would be repeated and in particular that B would be separated permanently from his father. In my view that means both that protection must remain in place now to prevent any possibility of B being removed from his foster carers and/or from England prior to his transition to Spain with his father, but also that the proposals for contact involving as they do professional supervision are appropriate ones.
- Thus, in terms of the exercise of my discretion the overwhelming weight of the factors fall in favour of a return of B to Spain to live with his father.
- Given that this court is exercising an abduction based jurisdiction and given the circumstances of B 's placement in care, unless the continuation of the care order provided significant additional protective benefits to B I do not feel it would be appropriate to continue with it. I'm satisfied in the circumstances of this case that I have the jurisdiction under section 5 CACA 1989. B finishes school tomorrow and so I consider that the care order should be discharged as of tomorrow. Thereafter he should be accommodated by the local authority pursuant to section 5 of the Child Abduction and Custody Act 1985 with the supporting injunctive measures which will prevent the mother from having contact with B save at the contact centre and which will prevent her from removing B either from his foster carers, the father, and his school or anybody else. A freestanding port alert is in place. If there is any concern, an application can be made to me either on paper or by an attendance before me next week. The powers of the tipstaff under a collection order remain available to me.
- The arrangements for B between now and his departure next Friday should be as set out by the father and local authority.
- I will make an order in those terms. That is my judgment.
