LC v RRL & Ors

Has the evidence I have heard (and unusually in Hague proceedings heard tested in cross-examination, as had Cobb J on the then body of information before him) undermined those findings, or led me to make additional ones relevant to the focus of the questions set by the Court of Appeal and the Supreme Court?

The prior question, however, is can I revisit those findings at all, or should
I respect them as they stand? For the following reasons I consider that it is open to me to revisit them, and record where and why I depart from them, if indeed I do.

As the Supreme Court observed, it is not surprising that Cobb J’s enquiry had not considered T’s state of mind, nor indeed that of L and A (the subjective element referred to by Lady Hale at paragraph 60 of Re: LC) nor, in a different context, had the impact ( if any) of a separation of the sibling group, as was illustrated when Ms. Vivian made it clear to Cobb J that the issue played no part in the type of enquiry she had been engaged in before her change in status (much later) to guardian, as opposed to her previous role as interviewing officer (initially carrying out at the court’s request a brief interview to ascertain the child’s objections, if any, to a return order following the classic pattern in Hague cases where that issue arises).

At the time of the departure to Spain in July 2012, T was rising twelve, L was nine, A was seven, and N was three.

As Lady Hale points out at paragraph 75 of LC:

“75.

The objective evidence records an extraordinary state of affairs. The mother left it until the very last day of term to withdraw her daughter from school. T was clearly not too happy about her friends knowing that she was leaving. This is consistent, both with the judge's finding that by then, very late in the day, she knew her mother's plan was that they should move, and with her own account to Ms Vivian that she was not sure what the real situation was, partly because her mother had made similar threats before and partly because she herself did not really accept it.”

Cobb J does not consider at any length, or at all, the impact on the children, and on their respective states of mind, of the huge change to their lives.

The new evidence illuminates it, and I find that:

As is clear, I find the mother to be a woefully unreliable witness about so many issues concerning this period of July 2012 to January 2013. I have given myself a ‘Lucas’ warning when considering her evidence. In large measure I find her to be deliberately lying in order to establish/support her case that the children were integrated in Spain, and were in fact failing in this country before relocating to Spain.
I also unhappily have come to the clear conclusion that in that period (and subsequently) she did not, and even now does not, listen to them. Perhaps the most obvious illustration of this was her challenge to the authorship of an e-mail written by T to Ms. Vivian, dated 20^th February 2013 (see D18/19), a document which Ms. Vivian and Cobb J had no trouble in concluding was her own work and an expression of genuine feeling. This lack of credibility in her account, and lack of sensitivity to T, impacts heavily on my consideration of her evidence about the integration of the three oldest children. For the avoidance of doubt
I share the view of Ms. Vivian and Cobb J in respect of that e-mail.

In assessing the question of some degree of integration I must consider it in the context of what had gone before, for as Lady Hale observed at paragraph 63 of LC, “some habitual residences may be harder to lose than others, and others may be harder to gain.” The third report of Ms. Vivian and the statements of Ms. Chadha and Miss Blackburn all emphasise the value the children place on their earlier lives in England, the rich texture of it and the deep roots they had and have in England. See, for example, A to
Miss Chadha at C386, which reads:

“13.

A and his siblings have been in England living with their father in the family home in B since Christmas 2012.  A said “I want to stay here, this is where my family and friends are, you cannot take away your relationships with other people.”  He has resumed lifelong friendships since going back to S M school in B. His best friend is J. A told me that Spain, “it is not the same place as where I normally live and where my life is”.  A went on to say “I do not feel like myself in Spain, I feel like I am in someone else’s country not mine”.  A went on to describe that he feels like they were living in a “haunted city....no one can see us in that country we are there but no one can actually sees us in that country”.  I asked him what he meant when he said that “the people in Spain cannot see me,” that he feels “invisible” but “I don’t feel like that here in England”.  I asked
A whether there was anything about living in Spain that he liked, he said “no”.”

See also T to Miss Blackburn at C429:

“13.

Whilst at primary school T undertook a lot of extracurricular activities. She recalled having a club or class to attend most nights of the week (cookery club, Brownies, swimming, netball etc.). T told me that she had also been selected by S M for the Gifted and Talented Course. I am told that there was no fixed quota for the school and only she and a boy called D P had been selected from her year. Having been selected
T attended various courses (maths, French, Latin etc.) and competitions. In Year 5 (i.e. the penultimate year of primary school) T had also joined “The Da Vinci Group”, an online learning platform for gifted young students which, she tells me, is a collaboration between Warwick University and Brasenose College, Oxford. It offered T the opportunity to interact with other students and develop skills in communication, philosophical thinking, debating etc. T has told me that she really enjoyed the Da Vinci Group, “it was challenging, I fed off it, I enjoyed using my brain, I am competitive and I was up against 14 year olds”. T told me how she had competed against 14 years in a debate and won a scholarship. Although she had not been able to attend the resulting course that she was competing for (as the scholarship only covered 90% of the fees) she described it as “great to win though”.”

It should not be thought that I have ignored, in considering all of this material, and the arguments put forward as contra-indicators to the case put by the children, the wider evidence not otherwise referred to in great detail. See by way of illustration passages in paragraph 69 of Lady Hale’s judgment (factors relevant to all four children). See by way of further illustration what L told Ms. Chadha in June 2013, recorded at C348(13), which suggests that he at least was happy at school in Spain. Paradoxically that he should offer that information, though it may be said to undermine his overall case, adds to the weight to be attached to his broader criticism of life in Spain in that period, for he is very clearly capable of discriminating between good and bad experiences (however limited the former category may be).

It is impossible to do full justice to the texture, which I have earlier described as a rich one, of all the material which has been supplied to me. I have attempted to give a flavour of it but it requires detailed attention.

I shall turn in a moment to the issue remitted by the Court of Appeal, but at this point (not too reductively) simply state that this sibling group is a very close one, with multiple pleasures in their relationships with each other, and a high degree of mutual emotional dependency – they simply cannot conceive of being separated from each other. This strength of attachment is not newly forged but clearly long-standing, and the events of the last two years have enhanced its importance. The feuding between these two parents has left the children conflicted, unwilling to choose between them, indeed at very great pains not to do so, a responsibility they should not have to bear. These acute and unresolved problems between the adults have most obviously affected T, who, in the opinion of Ms. Vivian, which I accept, based firmly as it is in the evidence, wants to restore her relationship with her mother (an aim the mother is by her behaviour thwarting) – see as but one example of this paragraph 95 below, and the wider observations of the children as a group summarised by me in paragraphs 81 – 102.

I have come to the clear conclusion on the facts as now established, going considerably beyond those found by Cobb J on the limited information then available to him, and then not approached from the perspective now required of the court, that T never lost her habitual residence in England in July 2012. Her state of mind as illustrated by her history prior to that date in the very brief period from that date to 5^th January 2013, and in what she has said subsequently to further illuminate her views (consistent as they have been) leaves me in no doubt. There was no “sufficient integration.”

He has made remarks about his school in Spain, which I reported earlier, and those remarks were of a positive nature. But even there he (willingly) had to adopt the responsibility of looking after the welfare of his brother A in the absence of the mother doing so. As for his life outside school in the relevant period, and taking account, as I did with T, and shall do with A when I come to consider him, of the history before the relevant period, and what he has said about this issue subsequently, I have come also to the view that he never lost his habitual residence in England. Expressions such as “having a go” and “making the wrong choice” in respect of his time in Spain do not undermine this finding. Objectively, on the basis of my factual findings, and subjectively as gleaned from his words and behaviour, this is established. It is a finding supported also in my view by the totality of the experiences of all four children together, and because of the deeply committed relationships which bind them together.

These children have shared their experiences with each other and have clearly discussed them with each other, considered the impact of those experiences upon the way they were living, and their individual and collective responses to those matters. It seems to me that whilst I must consider the facts relating to each child separately, for the facts and their responses to those facts will vary, I also, as Lord Wilson and Lady Hale made plain, have to consider them as they plough their furrow together, there being
a “solidarity in the presentation of the three older children” as described by Ms. Vivian. [B198, paragraph 43]

For the same reasons as apply to L, I do not consider A to have lost his English habitual residence. There has been insufficient integration.

In coming to these conclusions I have weighed in the balance, amongst many other factors referred to above, the fact of the continued existence of their previous home, and that their father continued to live there, as well as the strength of their ties, and the duration of those ties, in England. In counterpoise
I have also considered the very clear abandonment by the mother of her habitual residence in England, and her almost immediate establishment of a new habitual residence in Spain with all of her rich ties to that country, linguistic, social, familial, and furthermore that the father, albeit with reluctance, consented to the move; but the children did not.

Should I be thought wrong in my above recorded conclusions in relation to
T and/or L and/or A, I consider it more likely than not that each of these children would at the least have lost their English habitual residence but not acquired one in Spain by 5^th January 2013.

I have found N’s position the most difficult to resolve for obvious reasons. His comments on the subject of living in Spain, whilst negative, do not have the same range nor the same weight as those of his older siblings. Not only is there a paucity of observation by him, but his age and level of maturity merely suggests to me that I should record his views without in any way regarding them as overly influential. In this respect see Ms. Vivian’s third report at D74
(paragraph 19) to D75 (paragraph 26) inclusive, and in particular on this issue paragraph 24 which reads as follows:

“24.

I talked to N about his feelings about Spain. He said he is ‘trying my best to say I don’t want to go to Spain because we have been here all our lives and because my mum puts us out in the night and she lets us go to school on our own’. I asked what he meant by ‘puts us out at night’. He said she says ‘go to your friends and I don’t know where my friends lived. My dad was there, but I did not know he was there. I asked whether he meant he was in his mother’s house. He said he was, ‘it’s my grand-mother’s house’. He added, in relation to living in the UK, ‘we’ve been here all our lives….since we were babies…’ ’

Whilst it is clear that that there is no rule of law that a child takes its parent’s habitual residence, it is clearly recognised that a factual analysis may lead to such a conclusion (see, for example, paragraphs 61 and 62 of Lady Hale’s judgment).

Given the factual circumstances of his life in that period (bearing in mind that there is much less evidence about him) I have reminded myself of the words of
Lady Hale in paragraph 60 when she says:

“All of these factors feed into the essential question which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed ‘habitual’.”

Overall, bearing in mind as the context that N was living in the same place, and sharing many of the same experiences as those encountered by his siblings, including all the deficiencies of care identified by them, including also the destabilising effect of the absence of any real texture to their contact with the father, and having considered that the oldest three had not acquired habitual residence, it is open to me to conclude that he had not either. He is very much a part of this tightly bound sibling group. Whilst I recognise that his position by virtue of his age is less clear-cut than the position of the oldest three, I find on balance that he too did not lose his English habitual residence, or, if he did, he did not by 5^th January 2013 acquire a Spanish one. His remarks at paragraph 24 of Ms. Vivian’s third report support such a view as to an insufficiency of integration having been established, as does his comment reported in paragraph 25 that his mother took him to Spain without dad, “I felt sad”, showing is this one example alone the strong pull in the opposite direction. I do recognise, though, that I should not over-interpret these remarks, for of all the four children he may well be the most susceptible to influence from his siblings, or be simply repeating what he has heard from another, rather than recalling events from his own experience, as Ms. Vivian suspects.

I have in so concluding given weight to the assessment of Ms. Vivian, recorded in summary form in Mr. Kearney’s closing submissions at paras 19 and 20, which read:

“19.

The Guardian emphasizes the unity of the sibling group and the court is able to consider this sibling unit – as apart from their permanently disputatious parents – when considering the habitual residence of its constituent members.

20.

The Guardian’s 3^rd report highlights the closeness of the siblings and N’s position within the group. Although observed in England under the primary care of their father, on balance it is likely that the same sibling dynamic obtained in Spain under the primary care of their mother.

“51.

T, L, A and N present as a close, interdependent and highly functioning sibling group who have always lived together and who have gone through difficult experiences which in all probability have brought them even more together. They have each reported above on how they view their siblings and I will not repeat what they have said, as I think their comments speak for themselves. They report mutual respect for each other; they engage with each other in play and learning and seem to me to operate as a ‘team’; they care for each other and love each other. Significantly, despite holding their own individual views and feelings that they acknowledge and accept, they have made clear through their actions in these proceedings that they wish to remain as a sibling unit in this country. For them, to be separated from each other across jurisdictions is not an option they can countenance. I would say on their behalf they find the prospect intolerable.

52.

It seems to me that, as is usual, these siblings have affinities, alliances and sub-groupings. T and L, being closer in age, engage in ‘grown up’ activities together such as listening to music [almost certainly the younger ones will benefit from this older sibling knowledge in the future]. L, A and N play a lot together, A and L share mutual school friends, it seems that L has done and continues to take the shyer A ‘under his wing’;
A ‘plays and chills’ with his friends at school, he said A did not have school friends in Spain and he would ‘come and hang out with me and my friends’. All of the siblings interact with N and ‘look after’ him; T reads with him, A helps dresses him and from my observations A and N are particularly close. The head teacher at the boys’ school confirms the closeness between the boys.””

I agree with those paragraphs, mirroring the findings made above
(paragraph 70) as to their shared experiences as a group and the impact that has on integration.

Before I turn to the question posed by the Court of Appeal, it is relevant to say
a little here about the proceedings instituted by the mother in Spain in April last year. Those proceedings have post-dated the father’s proceedings issued by him under Part II of the Children Act 1989 in the County Court seeking relief under s.8 of that Act by way of “protective orders”. Those proceedings were issued by father on 10^th January of last year. He notified the mother of them orally the same day when he telephoned. I am told that those proceedings have been stayed but cannot find any relevant order in the papers before me. I simply have to assume that to be the case for these purposes.

In the carefully crafted and detailed statements filed by her Spanish lawyer on her instructions in the Spanish proceedings, there is no mention of those English proceedings.

Recently, on 28^th February 2014, the Spanish court gave a lengthy ruling granting the mother relief in relation to the children, and in particular the care of all four children, with both parents sharing parental responsibility, and granting the father contact rights as follows: one-half of the Christmas, Easter and summer school vacations; alternate weekends in Spain when he can make the journey, and that the father can take the children from Spain but only with the mother’s written consent.

The lengthy judgment of the Spanish court makes no reference to the County Court proceedings, though it does refer to the Hague Convention proceedings. Jurisdiction in the Spanish courts is ruled appropriate within that judgment, which says this (in this context):

“The proceedings in England as well as the ones in Spain have been commenced by the mother. There are no records that the father has commenced any proceedings in Spain or England. The purpose of the proceedings commenced by the mother in England under The Hague Convention is for protective measures to be taken in relation to the return of the children.”

And later:

“On the other hand, the judgment delivered by the English courts does not have any res judicata effects due to the special and summary nature of the referred proceedings of protective measures given the current proceedings, which are proceedings of entire judicial cognisance that have res judicata.”

It is noteworthy that the mother and her Spanish lawyer attended that hearing, and indeed the mother gave evidence along with other witnesses. It is further clear that they made no reference to any English proceedings in the course of so doing.

It thus follows that the mother misled the Spanish court. What is equally clear is that she made no reference to the appeal to the Court of Appeal in England and its outcome, nor to the Supreme Court judgment, nor to the hearing directed by both of those courts, which has taken place before me. Indeed, the case was set down for some three days in March of this year, but was not reached because no Judge was available. There is no reference to that abortive hearing either, although the mother well knew of it. Thus, it appears to have proceeded on an entirely erroneous basis as to jurisdiction. I leave aside whether or not the mother was in breach of her undertaking to Cobb J on 23^rd May 2014, not to bring an “ex parte” application within the Spanish proceedings concerning the return of the children to that jurisdiction.

What was very clear from the mother’s oral evidence to me was that she regards the order of the Spanish court as a trump card entitling her to do whatever she wants in relation to all four children. One of the consequences of this is that she assured me that she will not seek to inhibit T from coming and going to and from Spain by deploying the order of 28^th February of the Spanish court, but moments later in her evidence she reversed this position and said she would enforce it. Thus T is, as she has been for some considerable time, left in the invidious position that she might find herself as at high risk of being kept in Spain against her will if she went there to see her mother, or the three boys, if they are returned in proceedings under The Convention and the Regulation.

As to the father seeing the boys for contact in England if they were to be returned to Spain, she was clear in one part of her evidence, that she would permit the boys to come and go to and from England for contact purposes, but that in no circumstances would she consent to a variation of the order of 28^th February 2014.

She has in consequence of some entries in one of the father’s most recent statements (which I need not set out) concluded (although the father denies it) that he has, to use contemporary parlance, “hacked” into her telephone or computer. She has accordingly made a criminal complaint about this in Spain and enquiries by the Civil Guard are ongoing. Thus potentially the father, if he sought to enter Spain, might well find himself arrested and contact thwarted, and his liberty impeded. Certainly L thinks that to be a real risk (see paragraph 92 below).

The mother sought to persuade me that all these potentially highly unattractive consequences for the father, and consequently the children, would not occur because she would take no action to enforce them. I am sorry to say I did not believe her. Her rage at the father burned brightly throughout her evidence. She is, I find, more likely than not to do whatever she can to thwart him. She considers the Spanish order gives her the authority to do what she likes with each of these four children.

I have earlier set it out at paragraph 9(i) above. If I am right as to my findings on the question of habitual residence of the four children, I need not of course go on to consider this matter. But in the event that I am thought to be wrong as to habitual residence, I have decided to give my views upon it.

The question assumes that return orders might be made in respect of the boys, and that the mother does not seek to enforce a return of T to Spain under the Regulation, thus bringing about a separation between the four children.

In passing, I note that the mother, at those points in her evidence when she stated she would not enforce T’s return to Spain, said that if the boys came to her in Spain under return orders, T would soon follow on voluntarily. I consider her, having read and heard her evidence, and that of T, to be profoundly wrong in that assumption. It does, however, by a side-wind, illustrate that she recognises the power of the siblings’ attachment to each other.

What would be the view of the children if there were to be such a separation?

It is worthwhile looking at the boys’ and T’s current statements, for although in one way or another this question has hovered over them all, it has become the subject of sharply focused enquiry since August of last year at the latest, and has been brought painfully into play as this hearing approaches, and in particular, as Ms. Vivian (entirely appropriately) came to interview the children for the third time.

The place of those recent interviews was their home. When seen together the boys “sat closely on the couch together and touched and inter-reacted with each other affectionately. A, in particular, was affectionately watchful over N.” There was later, as Ms. Vivian interviewed T on her own, evidence of “a lot of fun and games in the rooms above”, suggesting to me that even in these strained circumstances as they waited to be seen themselves there was a real and deep attachment between each of them, and they supported each other in this fashion. But that vignette does by no means stand alone, and would provide but a slender thread if it were standing alone.

T summarises her position at paragraph 15 of Ms. Vivian’s third report, which reads as follows [D73]:

“15.

T describes her relationship with the boys as ‘very normal’. She is very close to L, although they have a lot of arguments as well. We discussed their differences in music, he likes rap, she likes Indie. She was interested in my music choices. She said L is a lot like her; ‘more outgoing, we speak our minds a lot, more confident. We have a close relationship but means we fight more; I’m close to his friends too. [We are] the duo of humour, tricksters’, she went on to tell me about an April fool’s joke they played on their father. N, she thinks is ‘quite independent, he has learnt to read already…it makes us closer because I’m like that as well, we read together in bed’. She added ‘we noticed how incredible he is’. She would miss him the most if he had to return to Spain; ‘we are really close, he is so sweet….there are times when we’re upset, he makes us feel better, he’s really caring , he has a sense, if he knows something’s serious he goes over and holds hands. He has had it ever since he was little’. She thinks L and
A are more like her father, ‘very capable, they just don’t love it [reading] like I do’. T explained A is ‘very different’ to the rest of us, a ‘different person, more shy, less outgoing. He has a clever sense of reason and justice.’“

T later said that she “thinks that she would be ‘OK’ staying if she knew the boys wanted to return”. NB, this position is dependent on the boys going voluntarily, not being coerced against their will, as is quite clear from her phrasing.

Miss Blackburn addressed this issue in her second statement of 4^th April of this year at paragraph 46. She says this at page C438:

“46.

I believe that T finds the idea of her brothers being forced to return to Spain and being separated from her almost too painful to comprehend. I recall that she grimaced when we talk about it. This issue will be addressed by Ms Vivian in her report when she meets with all four children later this month and I do not seek to say anything substantive regarding this issue save to record that even though T readily recognises that it would be “horrible” she would chose to stay in England rather than accompany her brothers back to Spain. She has told me that it would be all the more painful because (a) she knows how intensely they [T’s brothers] don’t want to return and/or live in Spain ; (b) she would be where she wants to be and she would know that they were not where they wanted to be; (c) she knew that not having her with them in Spain would make matters worse for them in Spain, “they would be lost” ; and (d) she would be forced to make a decision even though she knows what her decision will be.”

N was not really asked about separation directly, as is entirely understandable.

L, considers Ms. Vivian, has a “certain vulnerability” and had difficulty “processing his emotions”, though is honest and clear when he does speak.
I accept her judgment in this matter. L’s view on separation is recorded in
paragraph 32 of Ms. Vivian’s recent report. It reads at D77:

“32.

He talked on and said ‘most of the stuff is hard to describe, it’s something I have inside’, adding ‘if I go to Spain nothing will forgive her making us go there, even a million pounds will not make me forget she took us from the country we want to live in’. I asked him who he meant as ‘we’; he said me, brothers, basically family’. I asked how it would be if T stayed in England as his comment had referred to himself and his brothers returning to Spain. He said ‘that’s worse than going to Spain, if we all go it’s awful, can’t describe, it’s so bad, but separately as well I can’t describe how horrible it is and split us apart so we can’t see each other’. He went on to say they would not be a ‘full’ family, it would be ‘awful, even if we go to see her in holidays’. We discussed separation from T further; he said ‘it is not just T, anyone in the family.’ I asked if he meant his father, he said ‘yeah’ but explained that he is used to not being with one or other of his parents. Interestingly the point he was making was about what he regards as his family i.e. his siblings. He explained ‘it is awful to be separated from another parent, but I am used to it, but siblings is different’.”

A said on this occasion that if the Judge orders a return “we would just be shocked, what else can we say about it? Our lives would be gone and wasted.” This rather dramatic phrasing nevertheless reveals the strength of his views. At paragraph 36 of Ms. Vivian’s report he is recorded as saying this at D78:

“36.

……. On returning to Spain he said he would not ‘let that happen’, he would say ‘why do you do this. Would just make it worse’, I asked what he meant by worse, he said ‘the family, N is only 5, he won’t remember his father or sister’. For him he would ‘not be with some of my family any more, not nice to have a split family; I suggested that his family was split now, he added ‘not really, we can Skype mum every day. She’s our family still. In some other ways it’s like she’s not in our family’. He regards T as part of the family, ‘she’s part of my family, is always nice, very helpful. We’ve had T for a long time. We won’t be able to Skype her or whatever.’”

A had last summer said to Ms. Chadha that if he were to be separated from
T and L “This will mark us for life and we will never forget this moment.” (C361 paragraph 28). Neither he nor L have changed their position on this subject of separation over many months.

L expresses a fear that one way or another, if there is a return to Spain, his mother will either, through the courts or otherwise, stop contact with his father. I think regrettably that he is perhaps right about that as a likely outcome. I have commented earlier on the mother’s anger at the father. She had nothing but bad things to say about him in her oral evidence, and she purports to regard him as a deeply malign figure, manipulative, domineering and dangerously influential over the children.

The mother was wholly dismissive of this fear of L’s and her immediate response was to draw attention to the fact that the current arrangement meant that she was separated from the children herself, thus illustrating issues of separation were not a one-way street. The children speak very regularly and frequently with her (as noted earlier, sometimes as much as five times a day); they dearly miss her, and clearly miss her; they feel conflicted in their loyalties in stating that they want to be in England, and are profoundly puzzled and frankly distressed that for no good reason they are aware of she has only seen them face to face three times since the proceedings began. I regret to say that I too fail to understand why she has not seen them more frequently. It has not been because of the father’s influence, as she alleges, nor their unwillingness to see her, for they positively long to, and she has, through solicitors, been requested more than once to make arrangements so to do.

On this important subject Ms. Vivian says at paras 47 and 48 of her third report:

“47.

All of the children, including T, have reported their wish to have and to continue to have a relationship with their mother; she is an important person in their lives. Despite reporting that she has failed and still fails to understand their past and present wishes about living in Spain and feeling that she has prioritised her own life over theirs, all four children very much want to see their mother, in England. I consider their actions in speaking to her on a regular basis evidence of a determined effort on their part to maintain their relationship with her. All of this indicates that, from their side, their relationship(s) with their mother are potentially enduring; however I do think that their relationship(s) with her, to differing degrees, have been damaged and are in jeopardy. Further enforcement of her current position is likely to cause further damage, perhaps irreparable.”

48.

These particular children, given what they have been through in their short lives, [extended parental disharmony in the family home, parental separation, a move to another jurisdiction, in excess of 12 months of ‘summary’ legal proceedings including the anticipation of a return order which breaks the sibling group], are very likely to have difficulty renewing their bond with their mother, especially as I cannot but share their uncertainty about her ability to meet their emotional needs. They would be thrust into a situation having not spent any ‘real’ time with her since they left Spain. Whatever the outcome of these proceedings work towards repairing their relationship with their mother will need to be undertaken with and for these children and I cannot be confident about the mother’s capacity to do this.”

I regret to say I agree. A good example of her approach was a phone call she had with T on 8^th May this year. In her oral evidence the mother told me about this, and she agreed that (having just read Ms. Vivian’s third report) she had said to T that she, T, had got what she wanted; that she, the mother, would never see T again; that “it” (ambit unclear) was all T’s fault, and that T would realise what she had done when she was older, and that T would feel guilty. She was clearly very angry with her daughter. Further comment on this call and its emotional impact on T is superfluous.

Ms. Vivian assumes, rightly as I have earlier found, that it would not be possible for the father (certainly for the foreseeable future) to go to Spain to be with the children. She says:

“In the absence of any concrete evidence about the mother’s ability to meet the children’s needs on an emotional level, I think they (L & A) would be put in a situation which would be intolerable for them and there would be
a real risk of harm to their emotional development.”

(See paragraph 49 of her latest report). I agree.

By way of analogy, Ms. Vivian has quoted some of the principles set out by the British Association for Adoption and Fostering about sibling relationships, including the enduring nature of them, their value and importance to the siblings involved, their powerfully supportive nature, et cetera. (See D83, paragraph 50). They are a useful cross-reference when considering what these children mean to each other.

In a number of paragraphs she refers in greater detail than hitherto to what these children mean to each other, how they play, how they support each other, and many other facets of their behaviour which combine to make these relationships particularly strong. (See D84, paragraph 52). She also reports in more detail what the children have said on the subject (see paragraphs 53 and 54).

I am conscious of having quoted throughout this judgment many lengthy passages from the statements and reports available to me. I do so again from Ms. Vivian’s third report, for to attempt a summary of it would be too crude. The language and content of Ms. Vivian’s paragraphs speak for themselves. At paragraph 40 is says this:

“40.

The day to day lives of these children have been unsettled and uncertain for almost 2 years. Such highly charged, emotive, and protracted proceedings which directly involve children to the degree that they have in this case are very likely to have had a major impact on their own individual development, their physical, psychological and emotional wellbeing. This should not be underestimated and I would urge all of the adults involved to have this consideration uppermost in mind.”

At paragraph 51 she says:

“51.

T, L, A and N present as a close, interdependent and highly functioning sibling group who have always lived together and who have gone through difficult experiences which in all probability have brought them even more together. They have each reported above on how they view their siblings and I will not repeat what they have said, as I think their comments speak for themselves. They report mutual respect for each other; they engage with each other in play and learning and seem to me to operate as a ‘team’; they care for each other and love each other. Significantly, despite holding their own individual views and feelings that they acknowledge and accept, they have made clear through their actions in these proceedings that they wish to remain as a sibling unit in this country. For them, to be separated from each other across jurisdictions is not an option they can countenance. I would say on their behalf they find the prospect intolerable.”

And at paragraph 55 this:

“55.

Splitting this particular sibling group in their particular circumstances would be intolerable and harmful for them, not only because of the distress at day to day separation but also the knock-on consequences. Individually, given their different personalities and ages and stages of development, the emotional toll would be great for all of them. The boys and T would experience loss which I think would manifest itself differently in each child and the experience for them, I think, would be akin to experiencing a traumatic event, the recovery from which would be slow and unlikely to be complete. As I have suggested, the experiences of the children to date already makes them already emotionally vulnerable. The sibling group is the one significant, lifelong and stable factor in their lives. Furthermore I am in little doubt that the loss experienced by splitting the sibling group would made all the more profound [‘Our lives would be gone and wasted’, A] by what would bring it about, namely their removal from their secure base and being taken to live in Spain where they were unable to settle in 2012 to live with their mother with whom [to differing degrees], I can only assess, they have a fractured relationship. “

“The children remain in limbo and the risk of emotional harm is now a real and present danger for these four children.” [Part of Ms. Vivian’s conclusions in paragraph 56]. I agree with all of these observations and have no doubt that if these three children are separated from T and returned to Spain there would be a grave risk of psychological harm to each and a grave risk that each would be placed in an intolerable situation. Thus this defence is made out. The risks identified are not susceptible in my view to the establishment of protective measures in Spain. The problems are more fundamental.

I begin this section by acknowledging that neither the Court or Appeal nor the Supreme Court overturned the findings of Cobb J on the question of whether or not in Convention terms the children had objected to a return to the requesting State. Nor did they remit the issue for further consideration. I understand, however, that the point was probably not argued in either forum as to whether or not there could or should be a second opportunity to consider this defence.
I remind myself in this context both the Court of Appeal and the Supreme Court were imagining a very early return of this case to court for evaluation and conclusion, a goal long since missed.

I also acknowledge Mr. Setright’s point made in his closing submissions that were I to consider the question again (which in any event he submits I cannot) it would be wholly unnecessary to do so if I had decided the issue of habitual residence of the four children in the way that I have. For the same reasons that
I went on to consider the question posed by the Court of Appeal, I have gone on to consider this issue also.

Proceedings under the Convention and the Regulation are usually “summary”, and the time frame for them in countries where the Regulation operates has been agreed by those countries to be, ideally, six weeks.

Whilst there is nothing of which I am aware in the Convention or Regulation to permit a second look at the children’s objections (if any), nor is there any provision to prevent it. That is no doubt, as I have made clear already, perhaps because of the intended summary nature of such proceedings, and that accordingly circumstances, including the lapse of time encountered here, are most unlikely to occur which would give rise to matters not already considered within that anticipated narrow period before resolution.

But it seems to me an affront to the subject children if circumstances beyond their control have conspired to cause this egregious delay, during which period their views have, in the light of their experiences, changed, or, as is argued here, remained the same as before but are now so firm as to translate from what were found by Cobb J to be preferences to become, as defined in the Convention and the relevant case law, objections.

I can well see that to permit a second look at this issue might play into the hands of a manipulative parent who had been engineering delays in the litigation, providing time to work on the children so as to distort their views. There might well be other influences at work as suggested by the mother. But it will be recalled that these “snapshot” interviews of children the subject of such proceedings and proffering their objections by way of defence, are carried out by a cadre of highly-trained and very experienced practitioners in the CAFCASS High Court Team, astute at spotting such influences at work.

Happily, very few cases under the Convention or Regulation have, for whatever reason, a similar duration, or anything like. Thus, a change in circumstances permitting a second opportunity to argue objections is unlikely to arise with any degree of frequency,

Lastly, I am reminded that the Convention refers to the child who objects (present tense) and who is considered to have attained an age and degree of maturity at which it is appropriate to take account of its views. The passage of fourteen months since the first interviews, and twelve since the second, permits of the argument that it is unfair (I do not apply any adjective to the word) to the children not to permit the re-enquiry.

I emphasise that there would have to be a change of circumstances to justify this exercise. In this case the lapse of time argument is not the only relevant one, for, to list but one further matter by way of example, there has been the problematic history of, and future of, contact (real in the case of the mother, and potential in the case of the father) which the children have clearly been contemplating and will have factored into their views.

Even though the issue does not arise for consideration given my findings on habitual residence, I have as earlier noted decided to give my views on the subject and record my findings, for the reasons set out in paragraphs 106 – 112, and in order to avoid yet further hearings in the event that I am considered to be wrong in respect of habitual residence, or the 13(b) defence. I have, of course, considered it as a legally separate issue from the ones referred to in paragraph 9 above, although some of the evidence already set out in relation to both habitual residence and the Article 13 defence of “intolerability” is germane to the answer I give.

I remind myself that the objection has to be to a return to Spain, but that I can also consider, where for the child the question of a return to Spain is so inter-twined with a question of a return to the “left-behind parent”, that aspect of the evidence.

In the course of this judgment I have set out much material which supports the conclusion that the children L and A object.

The themes include, but are by no means limited to, their views on:

L and A are now respectively11.4 and 9.4, old enough, and, demonstrably on the evidence of Ms. Vivian, mature enough to have their views taken into account. The combination of their innate characters, intelligence and experiences establishes this without question in my view.

Ms. Vivian has seen them now three times over a long period and has had the opportunity to see them grow (in every sense) and to observe any mutations in their stated views and the strength of them. I accept her evidence that had she been aware that this issue might resurface at this hearing, she would have asked different questions and structured the interviews differently. I do not consider, however, that that disables this further enquiry, especially given the wealth of material over a very long time in the lives of each of these children.

These are demonstrably not mere statements of whims, nor are they simple statements of wishes and feelings.

I have earlier found that L and A have not been influenced by their father or by T to any significant extent. They have been consistent in their views. They are well-founded on objective evidence. It is accordingly appropriate to consider them.

Having done so and taking account of the totality of the material available to me, and in particular Ms. Vivian’s observations as to the strength of the boys’ feelings in the light of their age and maturity (again I emphasise not
a determination reached within the classical framework of such an interview)
I find that these two boys do object (in Convention terms) to a return to Spain.

Discretion is “at large”. I, like Cobb J, have followed the guidance of the House of Lords in Re: M (Abduction: Zimbabwe) 2007 UKHL 55, especially at paragraphs 43- 46 taken from the judgment of Lady Hale:

“43.

My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the 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 a discretion in the first place and the wider considerations of the child's rights and welfare.
I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in paragraph 32 above, save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

44.

That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.

45.

By way of illustration only, as this House pointed out in Re D (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619, paragraph 55, "it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate." It was not the policy of the Convention that children should be put at serious risk of harm or placed in intolerable situations. In consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that her future can be decided in her home country.

46.

In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.”

Given my findings on “intolerability” and “psychological harm” (see paragraph 103 above) and the observations of Lady Hale in paragraph 45 of Re: M, I do not need to consider discretion in this context further for the probability of any court returning a child to circumstances such as that is nil.

As to the defence of the children’s objections I would have exercised my discretion, had I had to exercise it, against a return to Spain. In so doing
I would have taken account of the following:

The parents will be referred to throughout as “the Mother” and “the Father” while the children will be referred to by the initial of their first Christian name.

The Father was born in the UK on 9^th July 1966. He is now 47. The Mother was born in Spain on 1^st August 1967. She is now 46. The parties met in O in May 1995 and soon started cohabiting. The Father, although English, lived for
a large part of his childhood in Spain and attended British schools there. The couple never married. The Father is a professional flamenco musician. The Mother is a law graduate.

All 4 children were born in England: T on 27^th August 2000, so at the date of appeal she will be 13 years, 2 months old; L on 4^th December 2002, so he will be 10 years, 11 months old; A on 2^nd November 2004, so he will be 9 years old and N on 29^th December 2008, so he will be 4 years, 10 months old. The Father has parental responsibility for L and N but not T or L.

The children lived in B and attended local schools. It is common ground that the children were habitually resident in England and Wales for all of their lives until at least 24^th July 2012. The children would regularly fly to Spain with the Mother for holidays during the summer. T started her secondary education at
O H S in September 2011, having secured a scholarship. Her place there was terminated by the Mother on the last day of the summer term 2012. I and A attended a local state RC school.

The parties’ relationship had completely broken down by summer 2012.

The children flew to Madrid with the Mother, but not the father, on 24^th July 2012 (the Father having driven the Mother and the children to the airport that day). Mr. Justice Cobb found that the Father was aware of and had agreed to the Mother and the children’s relocation to Spain. He further found that the Father had similarly accepted that they would then reside in that jurisdiction for an indefinite period.

Upon arrival in Spain they stayed at the address of their maternal grandmother. They were enrolled by the Mother in local schools in Spain shortly before the beginning of term in September 2012.

The Father flew out to Spain for contact with the children on 1^st November 2012 – in time for L’s first birthday on 2^nd November. He departed for England, alone, after a few days.

The parties agreed that the children would spend Christmas with the Father. He flew to Spain on 21^st December and flew back to England on 23^rd December. It was agreed that the children would return to Spain with the Father on 5^th January 2013. They did not. L & A hid their own passports. They refused to return and asked their father to allow them to remain in England.

On 10^th January 2013, the Father attended Oxford County Court and applied for a residence order. The proceedings were listed for a 30 minute hearing on
27^th February 2013. No orders were made.

The Mother issued proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“Hague Convention 1980”) / Council Regulation (EC) No.2201 2003 (Brussels II Revised Regulation 2003) (“Brussels II Revised Regulation 2003”) on 22^nd January 2013 having the previous day obtained without notice relief including a location order. The location order was executed on 22^nd January 2013 and the case returned to court for directions on 29^th January 2013. The Father filed an Answer on 4^th February 2013 raising issues of habitual residence, child’s objections and grave risk of harm intolerability. A report from the CAFCASS High Court Team was commissioned in respect of the eldest three children’s wishes and feelings and Ms. Sarah Vivian of CAFCASS filed a report on 28^th February 2013. The report when filed appended a lengthy e-mail from T to Sarah Vivian setting out her wishes and feelings and also containing information about the children’s lives in Spain and their feelings of being unhappy with the regime in that country. The Mother later suggested that the e-mail had been dictated if not drafted by the father. The Judge accepted that T had written it herself when he later heard from Ms. Vivian.

The final hearing was listed for 5^th March 2013 but no Judge was available.
A further final hearing was listed for 13^th May 2013 for 3 days with a pre-hearing review on 12^th April 2013. The Judge for both hearings was Mr. Justice Cobb.

At the pre-hearing review the Father made an application for T to be joined as
a party to be represented by Sarah Vivian. His arguments centred on the dispute about the provenance of the e-mail appended to Ms. Vivian’s first report and the difficulties the Father would have, in the light of the parental conflict, in representing T’s views. He also suggested that T and her legal advisers may wish to consider whether or not she was able to form her own habitual residence independently of her parents. The application was refused, although Ms. Vivian was directed to file a second report which she did on 7^th May 2013.

On 30^th April 2013 the Mother made an application to her local Spanish court seeking residence of all four children and orders restricting their contact with the Father in England. Those proceedings have been adjourned pending the outcome of the English proceedings.

At the first hearing on 13^th May Mr. Justice Cobb heard oral evidence from
Ms. Vivian, the Mother and the Father. The evidence and submissions concerned mainly the issues of habitual residence and the child’s objections. Both parents were seeking outcomes that kept all four children together. The hearing of evidence and submissions took three days and judgment was reserved until 23^rd May 2013 to enable the Mother to have contact with the children prior to delivery of the judgment.

The Mother argued that all four children had become habitually resident in Spain by the relevant date (immediately before the retention on 5^th January 2013) and that issues of parental consent, particularly given that the Father did not have parental responsibility for the two elder children, were not determinative but one of the factors. In any event, she argued that the Father had consented to a permanent removal to Spain and or had acquiesced to them remaining in Spain prior to their return to England.

The Father argued that he had neither consented nor acquiesced to the children moving to or remaining in Spain. He contended that the children had not settled into their new environment in Spain and still considered England to be their home. He argued that when considering the children’s habitual residence, the sibling group should be treated as one unit and the incidence of parental responsibility should not determine what was essentially a factual issue. He did not specifically argue that any of the children could form their own habitual residence independently of the parents’ intentions or that their views on their ‘home’ were relevant to the determination of the habitual residence.

The Father and the Mother disputed the issue of whether the three older children’s wishes and feelings amounted to an objection to a return to Spain. The Father contended that a return would expose the children to a grave risk of harm or otherwise place them in an intolerable position. He also contended that it would be intolerable to return the youngest child, N, if objections were upheld in respect of his elder siblings.

Mr. Justice Cobb reserved judgment. He handed down a written judgment on 23^rd May 2013. He made orders for the summary return for all four children.

He made findings that the Father had agreed to the children living in Spain and had accepted these new arrangements. He found that the children had settled in reasonably well to their new life in Spain. He applied both English and European interpretations of the applicable test in relation to habitual residence, finding that there was no material difference in their application. He found that the children had lost their habitual residence in England on or shortly after
24^th July 2012 and had acquired a habitual residence in Spain during the autumn of 2012.

He found that T objected to a return to Spain and was of an age and maturity for her objection to be taken into account. He found that L and A did not object to
a return. He found that their views taken overall revealed an ambivalence about the current situation and that their answers taken together showed internal inconsistency and some confusion. He also found that both L and A had been to some extent influenced by T, who, as he found, holds some considerable authority in the sibling group. He exercised his discretion in respect of T to order her return. That discretionary exercise was reversed by the Court of Appeal (see below).

He rejected the Father’s arguments on grave risk of harm and intolerability; he did not need to consider the separate argument in respect of N.

The Father sought permission to appeal from Mr. Justice Cobb: this was rejected. Having been granted a short extension of time by another Judge of the Division, he applied for permission from the Court of Appeal on 13^th June. He challenged (1) the (factual) findings on habitual residence in respect of all four children: (2) the exercise of discretion in respect of T: and (3) the findings that
L and A had not objected to a return. On 18^th June 2013, Lady Justice Black directed that a hearing of that application, with appeal to follow if granted, be listed with a one day time estimate and with expedition. A hearing date was obtained for 10^th July 2013.

On 22^nd May 2013, T contacted Sarah Vivian by e-mail to ask what she could do about the outcome. Sarah Vivian said T would have to return unless the Father successfully appealed the order. T consulted solicitors and on 1^st July 2013 she made an application for permission to appeal the order to return her to Spain.

L and A consulted their own solicitors and on 26^th June 2013 they made
a limited application to the Court of Appeal for permission to view the papers.

The applications of the children were rejected on paper by Lord Justice Thorpe on the basis that to admit the children “on some level...would risk the court’s timetable...” and the learned Judge went on to direct that the Mother should attend the appeal hearing on 10^th July 2013 and that consideration should be given to arranging a family mediation meeting on 9^th July 2013.

T sought an oral hearing on her application, and on 9^th July 2013 Lord Justice Ryder ordered T to have party status as a respondent to the appeal and adjourned her applications for permission to the full hearing the following day.

On 10^th July the fully constituted Court of Appeal (Thorpe, Moses and Sullivan LJJ) adjourned the applications for permission to 1^st August to enable family mediation to take place. T was present in court but L and A were not.

Both parents and the children (T, A and L) attended at the offices of the joint mediators on 15^th July 2013 but the mediation was not successful.

The legal representatives for L and A renewed their application at an oral hearing (in the absence of other parties) before Lord Justice Ryder on 25^th July 2013. He joined L and A as respondents to the Father’s appeal. He granted them permission to appeal on the ground that they should have been granted party status and or further or better representation in the first instance proceedings. He granted T the same permission notwithstanding that T’s legal representatives were not present at the hearing. He directed that their other applications for permission to appeal be heard at the hearing on 1^st August 2013.

On 1^st August 2013, a differently constituted Court of Appeal (Hallett, Black and Gloster LJJ) heard from leading counsel representing all four parties (the Father, T, L and A and the Mother). T was present in court but L and A were not.

Judgment was reserved. Draft judgments were sent out and an order was made on 15^th August 2013. The finalised and corrected judgment was not made available until 2^nd October 2013.

The Court of Appeal granted the Father’s permission to appeal on all the grounds of appeal. His appeal was however allowed in respect of one ground only: the discretion to order T’s return. All orders in respect of T were therefore set aside/discharged. The rest of the Father’s appeals were dismissed. All outstanding applications for permission to appeal by T, L and A were refused, and their outstanding appeals were dismissed.

The Court of Appeal stayed the return orders in respect of L, A and N and remitted the proceedings to the High Court for consideration of whether summary return orders should be made. Lady Justice Black indicated that the issue for the High Court was whether there would be a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable position if they were to be separated from T. Due to lack of evidence, particularly from Ms. Vivian, the Court of Appeal felt unable to determine the issues themselves. Issues of the role of the children in the remitted proceedings were to be considered by the High Court.

At the adjourned directions hearing in the High Court on 17^th September 2013, His Honour Judge Wallwork sitting as a Deputy High Court Judge, joined L,
A and N to the proceedings and appointed Ms. Vivian to act as their Guardian. Prior to the hearing the Mother had stated that she intended to seek the return of T pursuant to the provisions of Article 11(6-8) of the Council Regulation (EC) 2201/2003 (“Brussels II revised”) and T applied for party status in the remitted hearing. HHJ Wallwork dismissed T’s application for party status. He directed the parties to exchange witness statements and for Ms. Vivian to file
a further report. A 3-day hearing has been listed for 27^th November 2013.

The Father had his public funding extended to pursue an application for permission to appeal to the Supreme Court on 12^th September 2013.

The Court of Appeal office informed the Father’s and T’s representatives that no application for permission to appeal could be entertained by the Court of Appeal until 1^st October 2013. On that day both Father and T made paper applications to the Court of Appeal for permission to appeal to the Supreme Court. On
2^nd October 2013 the Father’s application was lodged in the Supreme Court office. T’s followed on 4^th October 2013.

The Supreme Court decided to consider the Father’s application for permission notwithstanding that the Court of Appeal appears not to have determined his application for permission itself. On 9^th October 2013 the Court of Appeal refused T’s application for permission to appeal to the Supreme Court.

On 17^th October the Supreme Court gave permission to the Father to appeal on the issue of habitual residency and to T to appeal on both joinder and habitual residence. The matter has been listed for a one day hearing on 11^th November 2013.

In granting permission to appeal to the Father and T from the decision of the Court of Appeal, this court identified two issues for its consideration:
(1) habitual residence; and (2) the joinder of T.

Those broad issues give rise to a number of particular issues: