19 July 2017
June 2017 - Private Law
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Appeal of a decision refusing an application by Mother (F) to relocate to Italy with the child (D) and a child arrangements order.
Appeal had been allowed due to a fundamental procedural error on behalf of the trial judge in failing to resolve the issue of future care of the child prior to considering the application for relocation and the failure to consider any finding of coercive and controlling behaviour as alleged by F.
Hearing over 2 days where the court heard from the CAFCASS officer who had recommended that permission be granted to F to relocate and be D’s main carer.
F had made substantial allegations of controlling and emotionally abusive behaviour which if true would be capable of amounting to coercive behaviour under s77(1) of the Serious Crime Act 2015.
The trial judge did not hold a fact-finding which raised the question of whether decisions about D’s care could have been properly made.
Taking in to account r52.11 CPR the learned judge considered that there was a serious procedural irregularity in the proceedings as it is established law that the future care of a child must be resolved before an application for removal can be considered.
The analysis that the judge did undertake of the future care of D was flawed as the consideration of welfare needs formed part of the context of relocation and not as part of the necessary analysis of which parent could best meet those needs.
The Judge was also wrong to not consider or make findings in respect of the allegations of controlling and emotionally abusive behaviour. The Judge took an overly simplistic approach in splitting the child’s time.
Further the reasons for rejecting the CAFCASS recommendations were at best superficial.
Appeal allowed and remitted to a new circuit judge for a rehearing, firstly to deal with the arrangements for D and then any renewed application to relocate.
D to be made a party and separately represented.
Application pursuant to Child Abduction and Custody Act 1985 seeking return of GP who was wrongfully removed from Italy on 10 February 2016 by her Mother (M). GP currently resides with M alternating between Shrewsbury and Derby.
Following separation of the parents in 2011, M removed GP from the family’s home in Benedetto Del Tronto, Italy to Sommacampagna, Northern Italy (450km away).
M received a prison sentence of 1 year in 2014 following F reporting the removal to the police and court proceedings being instigated. The impact of that sentence was subject of submissions.
The court of Ascoli Piceno granted joint custody in July 2014 providing that GP live each parent for half of every year along with alternate weekend and midweekly contact.
M accepted the removal of GP to the UK breached F’s custody rights.
Proceedings were brought in the UK in January 2017 with orders being made for the location of the child and M.
The court is not obliged to return the child if the party opposing it establishes that there is grave risk that return would expose the child to physical or psychological harm. The risk must be grave. It is not enough that the risk be real.
The Supreme Court endorsed the approach of Charles J in Re S (Abduction: Article 13(b) Defence)  2 FLR 442.
The principles to be applied are:
There must be a grave risk of harm to the child
Intolerable harm means a situation which the child should not be expected to tolerate
The source of the risk is irrelevant
The court cannot refuse to order a return when it is established that adequate arrangements can be made to secure the protection of the child after return.
The basis for contending return would cause an intolerable situation is based on; F being able to make limited financial provision, no accommodation for M or GP, M faces a custodial sentence on return.
His Lordship concluded that even if M faced a custodial sentence it would not amount to an intolerability although may be traumatic for GP.
The court has discretion on return if the opposing party can prove that the child objects to being returned and the child has attained an age and maturity at which it is appropriate to take account of their views.
Having heard from the Guardian and meeting GP, His Lordship concluded that GP was sincere in her resistance to return to Italy. However, that this has been influenced by M. His Lordship found that the allegations of violence made by GP to be conspicuously lacking in detail and whilst her affection for England was strong and sincere she was being deprived of her relationship with F.
The principle of international comity must be central to these applications to give the Hague Convention legitimacy and efficacy. There are no safe havens among contracting states and abducted children must expect to be returned.
His Lordship concluded that there was no grave risk of harm and made orders that GP be returned to Italy at the end of the school year.
Unusual set of proceedings under the Hague Convention on the Civil Aspects of International Child Abduction.
The case concerned 2 children, 2 fathers and 1 mother. The mother has 2 daughters who have always lived with the mother and each other. Both the fathers are American and serve in the American forces. Until last May, the mother and the children had recently been living together with the father of the younger daughter, who is her husband, in America.
The mother unilaterally brought the two children here to England. It is beyond argument that that was a wrongful removal within the meaning of The Hague Convention.
Both fathers applied pursuant to the Convention, for the return of their daughters to America. After a lengthy contested hearing in October 2016 Roberts J made an order for the summary return of both children to America pursuant to the Convention.
A defence that was raised by the mother at that time pertained to her own mental or psychiatric wellbeing and her profound anxiety at the thought or prospect of her daughters having to return to America. Roberts J concluded that on the evidence available before her there was not a grave risk of psychological harm to either child so as to trigger the exercise of discretion under Article 13 of the Convention.
Immediately following the decision, the mother claimed to suffer a further severe mental deterioration in her mental or psychiatric well-being as a result of the decision to return her daughters to America. This lead to cross applications heard by Mostyn J.
The father of the younger child applied to enforce the order of Roberts J for the immediate retrun of that child to America. The mother cross applied for the decision of Roberts J to be set aside on the grounds of a subsequent and significant change in circumstances. Both fathers opposed this application. Mostyn J declined to make any immediate order in enforcement of the order of Roberts J.
Directions were given for the mother to be examined by a consultant adult psychiatrist, the report concluded that ‘as a personal and subjective reaction to the decision that her children must return to America, this mother has suffered, and continues to suffer, severe psychiatric ill-health which could only deteriorate yet further if indeed her children had to return to America.
Both fathers having read the report accepted that their respective child cannot return to live in America because the effect on the mother, and indirectly upon the child, would be likely to be so severe and deleterious.
Both fathers withdrew their applications for return.