A v R

JUDGMENT dated 20 JULY 2020: HHJ CORBETT sitting as a section 9(1) Deputy Judge of the High Court

FINAL HEARING 24 JUNE 2020

Introduction

Hague Convention country, referred to herein as “Z”. The respondent, D’s mother (M) is a Dutch national. M was herself born in Z to a Z mother and having held Z nationality herself at the time of her birth. She still has some family there, and moved back to Z in 2008 where she had been living and working in Z independently for two years by the time the parties met in 2010. They met and began to live together in Z, leaving together in 2013 when the M was pregnant with D, and they moved to London. They married in June 2013. They separated in March 2015, but continued to live together until March 2016 when the F returned to Z. It was agreed that D remain living with the M in London.

Contact prior to this application

August. The M’s agreement to the dates and location of D holiday with F in Z was confirmed in an email from the M dated 4 July 2019, she even sent him a weblink to resorts in a region of Z, “Y”. On the strength of that agreement he had paid for D’s return flights, as well as flights for himself and the paternal grandparents (from France). In an email dated 5 July he offered to pay for M’s own flights there, when she didn’t reply to his offer he sent another email on 8 July telling her he wanted to book the flights. Without any warning, the M sent an email on 1 August saying that that F could only have contact with D if he cancelled his travel plans and agreed to see him in the European Union. She said that D did not want to go to Z if she did not ‘come along’, and that she has received advice. F had made no arrangements for accommodation in this country or Europe, or for the paternal grandparents to join him here. He had made all the arrangements (at the cost of £3,500) for a holiday in Z. There is no reference on her email of

1.8.19 to any risk of abduction, M’s withdrawal of consent on a basis of an alleged risk of ‘abduction’ came out in her oral evidence before DDJ Butler on 9^th August who says in his judgment that he was left unsure of M’s reasons, having heard her oral evidence. In the financial remedy case M was represented by direct access Counsel, she filed evidence and gave oral evidence.

She made clear that if F paid for her flights (and D’s replacement flights) she would agree to his spending time with F in Z. Since this was agreed, M brought D to Z on 16 August, departed for W straightaway and returned to Z on 21 August, staying with her family while F and D and the paternal grandparents were at a resort in Y. M asked to borrow F’s credit card while she was away as she had forgotten hers, and she incurred £1,000 of expenses in W without asking him. When she returned to see him to collect D, she asked F to change the flights again (at a further expense, having already spent more than $2,000 in replacement flights in addition to the £3,500 lost on the booked flights for the holiday due to start on 10 August) and when F refused, M accused him of holding D ‘hostage’. On 25^th August he was releasing D to her care in order to take flights back to the UK back to her country of residence, on 28^th August which was a flight date she had chosen and on flights he had paid for. I cannot accept that he was, at all, holding her or D ‘hostage’.

The father’s application

– complied with

Efforts to engage the M with the proceedings

9.6.20.

F’s solicitor heard from the M, was the F’s solicitor on Friday 19 June 2020, when M told her that she intended to file a statement but did not say when. She said that she had not done it previously because she had been unwell. She had never once made contact with F or his solicitor previously by email or telephone (despite having her contact details) to say so or to seek an extension. In circumstances where the M had not engaged with the proceedings (since the FHDRA) or complied with any of the court’s directions, F’s solicitors sent her on 15 June a copy of the draft order F was inviting the court to make as a final order at this hearing.

From: M’s email address

Sent: 23 June 2020 16:17

To: Blake, Margaret <margaret.blake@Justice.gov.uk>;

westlondonfamilyenquiries <westlondonfamilyenquiries@Justice.gov.uk> Subject: Re: ZW19P01451 A V R- 1 DAY FINAL HEARING

Dear Margeth,

Good afternoon. I am emailing as I have been unable to reach family court West London per telephone as no one is picking up the number I am dialing on the landline. Additionally, my mobile number has broken down in the last couple of months. My Case is No. ZW19P01451

I have been ill for the past months. I informed the respondent back in Feb 2019 and am still recovering, but court proceedings have continued nonetheless. . I have been unable to respond to my correspondence due to being quite ill and attach a letter from my GP for the Judge's attention.

I have been trying to contact the court/Judge/yourself to inform you of my situation per telephone but to no avail. My child returned to school now (I am his sole caretaker) and I have been trying to put my statement together but I need more time (as I am still in recovery and have to take care of my child).

I am trying my best to send my statement to the court asap but honestly I am struggling. I am still in recovery and have to take care of my child who is still not attending school full time.

I will try and send my statement by today, but would appreciate if you could consult the Judge and let me know if we can push back our hearing.

Please let me know if this is at all possible.

Kind regards,

Ms R

(REDACTED LETTER FROM M’S GP)

Hearing 24 June

I want more time to get back to the court and the safeguards point’. The M said that F’s solicitor was harassing her with correspondence and bombarding her with letters. ‘I am looking to reduce the communication with F. I have communication fatigue. I have a stressful job’.

F has made significant efforts to come regularly to see D and D likes that. D is really missing F.

‘I am fully for the fact that they should spend as much time together as possible. F is a holiday parents and I applaud him for wanting to change that. It’s extremely important that they see each other’.

‘This year I am more than happy for F to have whole of July with D in London first. I want later part of August from 20^th and early September. I have not booked my annual leave. At Easter – I want 4 days in a row at either end of hols’.

In term time D should be at home and go to F at weekends. D doesn’t do homework with F.

In August 19 –‘ I wanted to change my flights so I could go back to work. I felt held hostage there’

The F registered me and D attached to his residence permit. French consulate told me, and my name not is in his file as a carer. So I think something is not right. I do have a fear of abduction. Courts will side with the man. [F’s position – this is a genuine error, in 2016 on application to move to Z they were still married and M and D were automatically included. D’s passport was renewed by F a French national at the French embassy in London. D’s address was in London. Due to the Z residence status the French embassy had a record that D was resident in Z. F corrected this in December 2019].

D has never been on long haul flight with F. Even some HC countries can be a long flight and that worries me.

I am worried about the health provision in Z

She knew from attending the 20.1.20 hearing about the orders for her to file evidence. She knew from before that hearing that F had solicitors who were trying to engage her in the proceedings. The M has a demanding professional career and is highly intelligent. It is inconceivable that she had no mobile telephone for a ‘couple of months’ as she asserts in her email on the day before the hearing. Her email sent to my clerk at 16.17h on the day before the hearing indicates she had tried to contact the Judge, the court and Ms Blake my clerk. No emails had been received by my clerk or myself, and M had Ms Blake’s email address in the order and used it on the day before the hearing. The M had email access, yet did not reply to the F’s solicitors countless [justified] communications. She chose to ignore the letters sent by the solicitors for F as she regarded them as harassing which they were not at all.

his solicitor or the court – a simple email could have been sent setting out that she was ill and sought more time. The GP letter contains information that she had had symptoms of a viral illness. The assertion that she could not respond to court proceedings as a result is likely to have come from the mother. The letter does not say when the mother saw the GP for this illness, when the symptoms arose nor when it was diagnosed, the letter is merely dated 2 days prior to the court hearing. The mother was able to talk animatedly almost without stopping for an hour before me, she appeared very able to set out her case and arguments. It is not necessary to adjourn the final hearing. The M has had ample opportunity to read the papers, and put her case prior to the listed final hearing and has chosen not to. In any event I heard from her in detail and at length when she eventually arrived in the hearing on 24 June.

The Law

In Re A (Prohibited Steps Order) [2013] EWCA Civ 115 [2014] 1 FLR 643, the Court of Appeal gave guidance in relation to applications for permission to take a child for a temporary stay in a non-HC country:

‘The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.’

I have taken these authorities into account when making decisions in this case. D’s welfare is my paramount consideration and I have borne in mind s1(3) Children Act 1989. Further I am satisfied that each parents has had a fair trial in accordance with Article 6, and that the orders I make are necessary and proportionate interferences with the parent’s Article 8 rights.

a. A child arrangements order for D to spend time with his F :

In 2020/2021:

This is not agreed, M says that there should be a maximum of 10 days away from London at any time, and that D gets restless if not. She also says that the dates don’t suit her this year. The F agrees with her that D should be at home with her 7 days prior to the new school year generally.

DECISION: it is now 20.7.20 as at the date of this judgment. I have not been told when D’s term begins but I am assuming around 3 September. This year given the number of weeks left in the holidays, plus the fact that F has not had D to stay with him for many months now, I consider that 2 weeks with F is appropriate. This will be 8.8.20 for 2 weeks.

2021) is agreed iv. 10 days in the Easter holidays (2 April to 11 April 2021)

The F wants the actual Easter weekend as he does not have Christmas, the M wants 4 days at the beginning and end of the holiday with her.

DECISION: the parties need clarity. Given that the F does not have the Christmas holiday time he should see D on the 7 days ending with Easter Monday at 6pm.

The M says this should be one week only in addition to the June 2021 dates. She says that both should be day time only during the school week.

DECISION: additional weeks with the F until 2021 should be 2 (in addition to the June 2021 dates above. A week is 7 nights. One of these weeks will start of the first Saturday in December for 7 nights. Given his father lives in another country, it will assist D to see him more often and also to stay with him overnight. These will all be overnight stays with the father. There is no justification for day time only. Staying with F during term time will give F an opportunity to play a ‘non holiday’ parental role.

For indirect contact on Skype/ FaceTime each Sunday and Wednesday, as agreed.

From June 2021:

DECISION: the parties need clarity. Given that the F does not have the Christmas holiday time he should see D on the 7 days ending with Easter Monday at 6pm.

DECISION: – D is just 7 years old. On the F’s case he has spent a maximum of 12 days with him on holiday in Z. I consider that D should spend half of the school holidays with his father, in 2 blocks of (a)14 days and (b) however many days make up the remaining half of the holidays. My suggestion is that the F has the 2 weeks which begins on the Sunday after he breaks up in July, then the second period of days ending on the Sunday prior to D returning to school in September. This framework can be used and does not need negotiation.

b. Two specific issue orders permitting F to travel abroad with D for the purposes of a temporary holiday of up to a total maximum period of 28 days, unless a longer period is expressly agreed :

(“the 1980 Hague Convention”). The mother agrees EU only.

DECISION: Z is not a signatory to the Hague Convention. The F has obtained at his expense a legal advice from A lawyer based in Z which the M has had since February of this year. He says he will abide by any safeguards the court considers necessary. By way of additional safeguards F’s draft order includes a recital that D is living with M and is habitually resident in England and Wales and F will give an undertaking to return D to the jurisdiction of England and Wales at the end of every period of holiday contact.

An order from this court will not have automatic effect or enforceability in Z but is likely to be highly persuasive if adjudicated upon in tan and has the potential to be recognised to that extent by a court in Z.

Z is a country with which the parents and D have a close connection. It is not simply a holiday destination chosen by the father. It is also where the father lives and works. Visiting and staying with his F there is clearly in D’s best interests, important for D to know what it is like staying in F’s home and to have a concept of him there.

The M has in the past consented to D spending time without her in Z, in 2017, 2018, 2019. In 2019 she in fact left Z and went to Egypt while D was with his father.

The M has not prior to 1.8.19 ever objected to D going to Z. Even then in her email she does not suggest the F would fail to return D to her, the reason given is that D did not want to be there without her.

Prior to her oral evidence in the financial case, the M had not asserted any issues about D being with F in Z for holidays in 2017 2018 and 2019.

When she gave oral evidence about this change of position in the financial hearing, the DDJ was left unsure of her reasons. Before me she sought to say that she was worried about his non return from Z and any non HC country. Further that she worried about medical provision there. This had never been mentioned before.

D has a Z heritage through his maternal line. It is important for him, as a mixed heritage child, to visit the country of that heritage.

The M is free to go to Z when D is staying with his father. She is familiar with that country given her own connection there. If the Mother preferred to travel to and from Z with D then the father has no objection to that. The order needs to make provision for her to indicate by a certain date if she prefers this, and if not it is assumed that D will travel with his father. F says D can facetime his mother daily. He will provide her with return flight details before they leave.

Given her familiarity with Z, the M would be able to access resources to assist her in the event that she needed to.

In my judgment there is no risk of abduction by F. The F is a professional man working in Z. If he were to fail to return D to his mother this would be a criminal offence there. He is an ex patriate in Z and will wish to return to Europe at some point in the future. I accept from him that it would not be in his interests to breach court orders made in this country, nor to commit a criminal offence in Z. He would not risk this. M had expressed no concerns about a risk of abduction until her oral evidence on 8.8.19 when the DDJ was left unclear as to her reasons. I do not accept that the mother has any genuine belief that the

F will abduct D. In her submissions to me the mother said that the F held her and D hostage in Z in August 2019. This is simply not made out. The F had booked and paid for return flights on dates M wanted, she left to go to Egypt for a few days, he gave D back to her on 24 august and would not agree to her request to pay yet more money to change their flights.

F’s statement sets out how he knows that D lives in London with his mother and would not seek to change that.

F through Counsel gave a plausible explanation for the new matter raised by the mother namely the confusion regarding residence status and how this was corrected with the French embassy.

It is important to note that in any event all the matters raised by the mother in court pre-dates D’s last visit in 2019 to Z with F.

The F has offered a generally sensible order which makes it clear that D lives with his M and is Habitually Resident in this Country. He has offered to abide by any safeguards I consider necessary. He could not have suggested more.

In contrast the M has ignored these court proceedings hoping it seems to me that they would go away, as set out above.

The M has never in fact alleged that F has threatened not to return D to her. I find that the M does not hold any genuinely perceived risk of abduction, she allowed 3 holidays with F in Z, choosing during the last one to go to Egypt on business, leaving D with his F and making no complaint on her return or since about anything the F said or alleged or did when in Z.

I do not consider that there is any risk of the F abducting D. However, if I am wrong about that, the mother would have to make applications to try to achieve his return. In those circumstances I will accept one of the F’s suggestions and I will direct that the F lodges a bond with his London based solicitors ahead of any travel by D to a non HC country in the sum of (redacted) and in the event of D’s non return, the solicitors will pay that sum to the mother in order to fund her legal costs of securing his return.

Copies of the court order made by me should also be lodged at the French and UK Embassies in the destination country if non HC.

I accept the F’s undertaking to return D to his mother’s care, following all trips outside England and Wales. Further I accept his undertaking not to apply for any visa, but this should be wider than drafted, namely not to apply for any visa for D in any country without the consent of the mother or permission of the court.

I am further satisfied that I should grant the F’s application to take D to a country which is a signatory to the HC. The M’s only objection to this was the length of flights to some countries. This is a father and child well used to international travel. I have no reason to doubt that the F will not take the greatest of care for their son.

I have seen many letters and requests for information from F and his solicitors to the mother. They go unanswered or there is a long delay in answering them. They are not harassing communications. The mother chose to ignore court orders for her to file evidence even when a penal notice was attached. It is vital that both parents of D know where in the world he is at any time. It is vital that the mother respond to the father’s reasonable requests for information about D. I note in his statement that when the F wanted to engage with her about D’s settled status post Brexit, he and his solicitor shad to send many emails on the topic to her. The F set out in his detailed statement a number of other examples of communication issues with the mother. She did not appear in her submissions to deny her non/late responses but seemed to regard his enquiries and those of his solicitor as harassing.

Given the correspondence I have seen, and the fact that she regards entirely conciliatory letters as harassing, I am satisfied that unless I make this order, the mother will continue to ignore or delay replying to the F’s reasonable requests about their son. I will make this order as sought save that the requests are to be ‘reasonable requests’. 48 hours to reply is not unreasonable given telecommunications in the modern age.

The F does not seek to prevent the M travelling with D, but it is reasonable for him to want to know where in the world D is. F has never objected to her taking D overseas including to a non HC country eg Thailand. I am satisfied that it is in D’s interests that the M must give F 14 days’ notice of any wish to take D outside the UK, and shall inform the F where she is taking him.

In essence, both parents must inform the other in advance of travel plans involving D. Given they live in different countries, that they share Parental Responsibility for him this is only fair and reasonable.