De Andrade v De Andrade

This is an application under the Hague Convention on the Civil Aspects of International Child Abduction. The proceedings today have taken a slightly unusual course. The order which I will make is an order made essentially by consent, although it contains within it a provision to the effect that it may well not in the end be implemented or enforced.

The essential factual background is as follows. Both parents of the children concerned are Portuguese. The father is now aged 41 and the mother is aged 28. They have never married but have been in a relationship with each other for a long time. At one stage, between about 2005 and 2007, they were living together in England, and it was here that their elder child, a daughter, was born in July 2006, so she is now aged nearly nine. They had, however, returned to live in Portugal by the time their second child, a son, was born in March 2008. He is now aged about seven and a quarter.

There came a time when they ceased living with each other in Portugal and each lived in separate homes, but the children moved very frequently between the two homes. The phrase “shared care” has been used by the mother herself today. There were earlier proceedings in Portugal and certain orders made several years ago.

In autumn 2014 the mother clearly decided that she wished to come to live in England. She herself travelled here in November 2014 and came to rest in Scunthorpe. At that stage the two children remained living in Portugal at the home of, and with, their father. On 13 January 2015 the father travelled with the two children by air from Portugal to Manchester, where indeed the mother met them. All four, that is the mother, the father and the two children, then travelled to the address where the mother was living in Scunthorpe, and all four of them, for a period, resided at that address, although, as I understand it, there was no question of the parents sharing a bedroom or intimacy between them. The arrangement appears for a period, however, to have been relatively harmonious.

The children were entered into a school in Scunthorpe, which indeed they continue to attend. The daughter suffers severely from epilepsy, for which she requires regular medication and obviously urgent access to a doctor if the need arises, so they were also promptly registered with a GP in Scunthorpe. The father himself obtained employment for a three-month period from the end of January to the end of April 2015.

This apparent equilibrium seems to have blown apart in the middle of February 2015. At that point the daughter made a statement at her school to the effect that her father had been abusive. This in turn led to the mother requiring the father to leave the address at which he had been living with them, and attracted the involvement of the local social services.

In mid-March 2015 the mother issued private law proceedings for a prohibited steps order and child arrangements order in the family court sitting locally. Within those proceedings, however, the father very promptly raised his assertion that the children had only been brought by him temporarily to England and that, by applying for and obtaining prohibited steps and other orders, the mother was clearly evincing a desire and intention to keep them here long-term, which, said the father, amounted to a wrongful retention under the provisions of the Hague Convention. As a result, the present proceedings were initiated.

The matter which was listed and fell for consideration by me here today was whether or not these children have indeed been wrongfully retained under the Hague Convention and, if so, whether any defence is established to an order for their summary return as that Convention otherwise requires.

It is not in issue that immediately before the father brought the children to England in January 2015 they were habitually resident in Portugal. It is not in issue that under the law of Portugal, taken in conjunction with the existing Portuguese court orders, both parties had, and have, rights of custody in relation to the children which each were exercising.

The mother raised three lines of defence to the claim under the Hague Convention. Her principal defence clearly is that in fact the father deliberately brought the children to live here long-term so that there was, in the language of the Convention, a consent. Consent falls to be considered under article 13 of the Convention, but in reality if consent is made out the case is not a case of “abduction” or wrongful removal or wrongful retention at all. Article 13 does, however, make plain that when consent is raised the burden of proof or onus is upon the parent raising it to establish it.

Even if there was no consent, the mother additionally claimed that to order the return of the children to Portugal would expose them to a grave risk of physical or psychological harm; and in any event that the children objected to return to Portugal for the purposes of other limbs of article 13 of the Hague Convention.

The parties’ respective positions on consent have been set out in statements made by each of them. That of the mother is in the present bundle at page C50 and following; that of the father at page C44 and following. At paragraph 3 of her witness statement the essential case of the mother is expressed as follows:

“In or about September 2014 I first started to take steps to come back to England. I mentioned it to [the father] and he was enthusiastic. He said we would come. It seemed to me that he has never accepted our split. I explained to him that I did not mean we would go as a family. Nonetheless, he thought it was a good idea that I bring our children to live.”

That in fact is very strongly denied by the father, whose case is that he never agreed to the children living here long-term and only agreed to bringing them here for a period of about three months to spend some time with their mother after which they must return to Portugal.

This morning I said that I would hear time-limited evidence from both parents on this issue of consent. However, when the mother, who gave her evidence first, did give her evidence, it frankly became quite clear that the defence of consent is simply not made out in this case, for she explained more than once in the course of her evidence that what actually happened was as follows. She told the children that she wished to come and live in England. She said that she wanted the children to come and live here with her. At that point, according to her evidence, the father said “okay, we all go”. Pausing there, that is consistent with the first part of paragraph 3 of her written statement that I have quoted.

The mother said in her oral evidence that she then told the father that no, they would not be coming here to live together; rather, her proposal was that she would live here on her own with the children. That is consistent with the next part of paragraph 3 of her witness statement in which she had written “I explained to him that I did not mean we would go as a family;.” But the mother said several times during the course of her evidence today that the father’s reaction to that was that the children could not come here to live and he would not allow it. She said in terms during her evidence this morning, “he did not want the children to live with me on my own, he wanted to live with me”. So the reality is that there was never a consent by the father to the children living long-term in England with their mother on their own. The reality is that, once the mother had made plain that it was not part of her proposal that all four of them would live together, the father was not consenting to her proposal at all.

Thus when the father did in fact bring the children here in January it is not at all demonstrated that he did so pursuant to a consent and agreement that they would live here long-term; rather, he did so in order that they could spend a period of time here with their mother, at the end of which they would return to Portugal. That evidence of the mother concluded towards the end of the morning and we then broke off for lunch. I did, however, make clear before we broke that it did seem to me that on the mother’s own oral evidence her defence of consent simply was not made out.

The other limbs of her defence are, first, that returning the children to Portugal would expose them to a grave risk of physical and psychological harm or otherwise place them in an intolerable situation. As Portugal is a member state of the European Union, this is of course a case which is subject to council regulation EC no. 2201/2003, known as Brussels II, and in particular Article 11 of that regulation. Article 11.4 provides that:

“a court cannot refuse to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.”

The father had already offered, and today repeats an offer, to give certain undertakings to the effect that he will make his home available for the mother and children to live in and he will pay the rent until this matter can be heard at a proper on notice hearing between both parties before an appropriate court in Portugal. There will be other undertakings to the effect that he will live a minimum distance away from their property; he will not attend the property at all; he will not harass, intimidate or threaten the mother; and he will not attend the airport of return. In other words, until such time as this matter can be properly considered before an appropriate court in Portugal, the father will keep completely out of the way of the mother and children. On that basis it seems to me that there is simply no scope in this case for an effective defence under article 13(b).

The third limb of the defence raised by the mother is that the children themselves object to returning to Portugal and have attained a degree of maturity at which it is appropriate to take their objections into account. The children have been interviewed by a family court advisor, Angela Adams, on 14 May 2015 [paragraph 3 of her report obviously contains a typographical error when it refers to 2013]. Her report dated 22 May 2015 very clearly records the course and content of her meeting with the children. That report is available for any person with a proper interest in this matter, and any future court, whether here or in Portugal, to see and to read, and it does not seem to me to be necessary in the circumstances as they now are to lengthen this judgment by quoting from it. It is clear from the concluding section of the report that Ms Adams herself doubted whether the wishes and feelings of the children amounted to an objection within the terms of the Convention to return to Portugal. She said at paragraph 54: “…these issues….are unlikely to represent an ‘objection’ in the meaning of the Hague Convention.”

It is sufficient that I say that I myself am quite clear that the wishes and feelings of the children clearly amount to a preference to remain here in England, and clearly involve expressions of anxiety about their relationship with their father, but they do not, frankly, come anywhere near to an objection to return to Portugal.

Thus it seems to me that this is a case in which no defence to return under the Convention can succeed and in principle I am required to order the return of the children to Portugal forthwith. Effectively, the mother has accepted that, and the order that will be made is an order that has been negotiated between the parents and their lawyers outside court. The mother was no doubt influenced by the indication that I gave before we broke off for lunch; but in the end these children return (if they do return) because of her agreement or acceptance to the making of an order, not because I have imposed it upon her.

There has, however, been a further twist or development this afternoon. After it had been agreed between the parents that the children would return to Portugal and after a detailed order had been drafted to that effect, including the undertakings to which I have referred, the father had a private conversation directly with the mother. As a result of that, it appears that there is an understanding between them in principle that, provided the mother agrees to what I will call “appropriate” contact between the father and the children, including contact in Portugal, then the father will not in fact insist upon their return to live in Portugal and will not in fact seek to implement or enforce the order for summary return (at the end of this school term) pursuant to the Hague Convention.

Accordingly, an additional recital has been incorporated into the order which reads as follows:

“Notwithstanding the terms of the order below, the father agrees in principle to the children remaining in England on the condition that there is a contact order pursuant to Brussels II Revised, agreed between the parties. Such contact shall be dealt with via the parties participating in mediation immediately with a view to obtaining a defined contact schedule. In the event that either the mother retracts her offer of generous contact in Portugal, or that social services seek to prevent any contact which may have been agreed between the parents, the terms of this order shall be effective.”

Ideally, I would have preferred to adjourn for a short while the present hearing and for the mediation to take place, and then to restore the hearing if necessary if mediation had not been successful. The difficulty with that course is that the father is committed to returning almost immediately to Portugal. I am told that he is “destitute” here and cannot remain any longer in England. Thus the mediation will have to take place by video-link or some similar electronic method facilitated by a body such as Reunite and cannot take place with both parties physically present here in England.

Further, the father could not return again for some restored hearing. In other words, it is necessary that some conclusion be reached in these proceedings under the Hague Convention today. That conclusion is, as the mother has agreed, that the children must return to Portugal not later than 22 July 2015 (being shortly after the end of the current school term) and any further proceedings in relation to them take place there. But if, meantime, assisted by mediation, the parents have been able to reach an agreement as to contact then the father will not in fact seek to implement or enforce that order.