H v H

This is an application by a father, 47 year old Mr Paul H (“the father”), for the summary return of his 2 children to Australia under the Hague Convention. The 2 children are E born on 24 September 1992 who is 11 and J born on 23 July 1995 who is 9. The application is opposed by their mother, 46 year old Mrs Heather H (“the mother”).

The parties were both born in the United Kingdom. They were married in 1976. They emigrated to New Zealand in 1983. They moved to Australia in 1990. E was born there 2 years later.

They moved temporarily to the United States in 1995 where J was born the same year. They returned to Australia in 1996. They remained there building their own home in Victoria until June 2003. That month the mother came to England with the 2 children where she has lived since then. The circumstances in which she both moved here and has remained here are in dispute.

The father visited the wife and the children arriving on 19 September and leaving on 7 October 2003. He started the present proceedings on 10 June 2004, a year after the mother and children left Australia.

The application came before me on 29 July. The father was represented by Miss Ramsahoye and the mother by Mrs Wood. I heard evidence from a CAFCASS Reporter, Ms Demery, and from the mother and father.

At the conclusion of counsel’s submissions the hearing was adjourned. The father had relied in support of his application upon an affidavit from his solicitor in Australia. It related to legal advice given to the father in late 2003. it was to the effect that his lawyer was not aware of any legal means under Australian law that would enable the father to compel his wife to return the children to Australia. I pointed out that that appeared to be a waiver of the father’s privilege in relation to the advice that he was given. Mrs Wood sought discovery of the solicitor’s file. Miss Ramsahoye did not oppose this.

On 10 August 2004 Mrs Wood’s further submissions based upon a reading of that file were e-mailed to me. Miss Ramsahoye was by then away. I had already indicated that I would only give judgment, if necessary with reasons to follow, if I could do so without further submissions from Miss Ramsahoye. I gave my decision on 16 August. I will refer to The Hague Convention and the parties’ cases before coming to my decision.

The Convention was signed in 1980. Both the United Kingdom and Australia are signatories. It was incorporated in to United Kingdom law by s.1(2) of the Child Abduction and Custody Act 1985.

By Articles 3 and 4 the removal or retention of a child under 16 from one convention country to another is wrongful if it is in breach of rights of custody. If that is so and no defences are proved, the Convention country to which the children have been either unlawfully brought or in which they have been unlawfully retained must return the children to the other Convention country from which they have come. It is for that second Convention country to decide where they are to live. In this case there is no dispute that in June 2003 the children were habitually resident in Australia and the father had rights of custody.

He accepts he consented to the mother bringing the 2 children to England in June 2003. It was for a limited period of about 3 months. He says that the mother later indicated that she was not going to bring the children back to Australia. Her subsequent retention of the 2 children in England was unlawful. The court should immediately order their return.

Under Article 13 the requested state, in this instance the United Kingdom, is not bound to return the children if the father consented to or acquiesced in their removal or retention. The mother says that the father by his behaviour and words consented to her bringing the children permanently to England. He also subsequently acquiesced in their remaining here.

Finally under Article 13 the court “may also refuse to order the return of the child if it finds the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”. The mother says that the children do object to being returned to Australia. They have attained an age and degree of maturity at which it is appropriate to take account of their views. They explained their objection to Ms Demery who also gave evidence about them.

The father denies that he consented or acquiesced to their unlawful retention. The children are not of an age and maturity at which it is appropriate to take account of their views. In any event the views that they represent are not their own but those of their mother.

In the short decision I gave on 16 August I did not find consent nor acquiescence proved. I found the children did object to a return to Australia. They were of an appropriate age and maturity to take account of their views. In the exercise of my discretion I declined to return them to Australia. I now give my reasons for those decisions.

I consider the facts in relation to both these separate defences under the same heading. They are of course quite separate issues. If consent is proved by the mother, it arises before her departure to England with the children on 10 June 2003. Acquiescence again if it is proved arises after her departure. The parties’ evidence is in dispute. However what is now said and in particular what was written at the time does much to indicate the attitudes at the time in relation to both subjects.

It is common ground that by the summer of 2003 the relationship between the mother and the father was strained. The father says the mother left with the children in June 2003 to visit relatives for 3 or 4 months. She travelled on a one-way ticket. She was homesick at the time and this was an agreed plan.

The mother says the father had already said before she left that he wanted a divorce. He told her not to return, he did not want them back. They agreed not to tell the children of the divorce and a permanent stay in England until she was settled in with them.

She says that on his visit in September 2003 he did not say he wanted them to return. He did say he had grounds to take the children back because she was not able financially to support them. He did not pursue this when he learned that she had claimed income support.

The father says that he had been advised by his solicitor that he could not compel the mother to return the children. They discussed a range of matters on his visit. He never said he did not want them back. He points to a series of matters which point to the fact that the visit to England was temporary. She did not tell the school or the doctor anything else, their friends did not know otherwise, and she travelled with minimum luggage.

The mother accepts that last sentence. She says that it was all part of their intention not to tell the children until they had settled in England. She agrees that she talked about a range of matters with the father on his visit in September. It included future schooling for the children in England. The father does not agree that they also discussed his subsequent visits to see the children.

The mother also accepts that she never told the father that they were coming permanently to England before they left. She says it was because the father told her to go.

He kept saying that he could not wait to get rid of them and he made it very clear that he never expected them back. At the airport he said “Don’t you ever think about coming back. There will be nothing for you here if you do”.

She told me in evidence that before her departure the father told her to go and not to return over and over again. Within a short time he was in another relationship.

The father agreed that the marriage was not going well. There were financial difficulties. There were arguments with strong words and shouting. However he told me that it was for an extended holiday that the mother came with the children. He never told her to stay and not to come back.

He had been given the advice by his solicitor to which I have referred. He moved solicitors in January 2004. However it was not until his father in England told him of a programme that he had seen, that he went to his new solicitors. He asked them specifically about being able to have the children returned to Australia. He was then given advice on that which led to the present proceedings.

I turn to these for 3 reasons. Firstly I have not found it easy to resolve the fundamental disputes based upon the parties’ later statements and evidence. Secondly there is an explanation for the single ticket based on the father’s accumulated air miles which removes the otherwise potentially clear indication. Next, there is the mother’s omission to tell friends, doctor and schools of her intentions. That is indicative one way. It is also consistent with her wish that the children should not know until they had settled in England bearing in mind the small community in which they lived in Australia.

Finally there is always the risk that the account of the parties will be coloured, consciously or unconsciously, by subsequent events. As a result it may be a less reliable basis upon which to make important findings of fact.

The first account is that of the paternal grandparents, Mr and Mrs H, who in July 2004 recalled a visit they paid to the parties in January and February 2003. It is right to note that there has now been a falling out between them and the mother and their contact with their grandchildren has stopped.

In their statement they mention the new home which the parties had built. They went on –

“We were surprised therefore to find (the mother) had lost interest in it, her only desire being to visit England for a 3 – 4 month holiday with the children. The subject was discussed many times ……………….. at no time was it hinted it was to be anything but a holiday. Once it was said that whilst there she would see if she liked it, and if she might like for them to eventually return to live.”

On arrival in England the mother stayed with her parents-in-law several times over 2 months. In August “it was revealed she was not returning to Australia”.

The next account is a contemporaneous one in a tape dictated by the father on 15 May 2003 to his grandmother in England as he was driving home one night. In the course of the tape he said –

“(the mother) is looking forward very much to coming across to the UK and you will love to see the kids………….. she is spending a good time over there. She has got a return ticket for herself for 4 months. …………….it is not going to be easy for her because she has got to - she has got some schooling for the kids to keep up with. The kids – because she is missing 4 months, that’s quite significant so she has got a lot of work, or a lot of stuff from school that the kids will need to work on…………….I wanted her to stay there a good time because she is very homesick over the last 4 or 5 months now.”

On the day that the mother left with the children the father contacted his solicitor. He noted “spoke with Paul – he has problem with wife. He will e-mail me tonight”.

The e-mails between the parties start on 11 August 2003. Finance is the primary concern because of the very substantial borrowings which had been made.

On 19 August 2003 the father saw his solicitor who noted that the father “is going to discuss matters pertaining to property and residence of children further with wife. No action at this stage”. The solicitors write further to him about finances.

The mother asked the father to bring over certain clothes for his visit. A week before he left the father e-mailed the mother setting out a series of matters they needed to discuss including separation issues and finances. He said –

“It is clear to me now (and I didn’t realise how stupid I could have been) that you never intended to come back here. …………you do realise that your fleeing to the UK has taken the children away from me. That’s probably abduction. I would never take the children away from you – they are best with their mother but you’ve taken the right away from them to see their father – I hope they forgive you for that.”

Those extracts demonstrate I am satisfied that prior to the departure the father viewed the visit as an extended holiday. It was to help the mother with her feelings of homesickness at a time when their relationship was strained. There is nothing to suggest that the father consented to a permanent departure nor that, with new girlfriend or not, he wanted the mother to stay away with the children. At that stage he considered that he had been deceived.

The father flew to England on 19 September. On 3 October the mother’s solicitors wrote to him in a letter I have not seen stating –

“You have maintained to our client that you have grounds to force the children to return to Australia with you because you believe that our client cannot financially support them in the UK. We are further instructed that you are putting undue pressure on our client to sign the proposed plans for sub-division of the former matrimonial home ………..”

The parties were not cross-examined about this. I am reluctant to attach particular significance to it. There does not appear to have been a response.

On 6 October the father attended J’s school. He was, according to the teacher Miss Stevenson, concerned that J needed to get into a routine as soon as possible. He asked how many years J would be at the school before moving to the next one and was told it would be 2 more years. This was the day before he returned to Australia.

In his first fax thereafter he talked about her return ticket which he asked the mother to cancel and spoke of her being settled overseas. Doubts about his views were resolved in a further e-mail on 15 October in which he said this –

“I was never sure whether you actually left Australia with intent to return or not but the solicitor’s letter stating that you left Australia due to my unreasonable behaviour suggests that it wasn’t just a holiday but a premeditated ‘escape’. When you told me you had taken all the photo negatives and the kid’s school reports that clinched it. I did think you were taking a lot of clothing for a holiday but I guess I know why now. I recall you had been talking to Karen Butcher earlier in the year about accommodation over there and again it didn’t click with me at the time – you had planned the move a long time ago and foolishly I helped you get away with it by giving you my frequent flyer points! I guess I was a little naïve. I guess you’ll never know how hurt I was in the first 6 weeks or so when I was asking you when you were coming back – you were just very vague and non-committal and it was then the penny dropped………….. I wanted to talk about the future and us and we just couldn’t. I was hurt and would get angry and just couldn’t get you to commit or even indicate if you were returning. It was at that time that I was feeling at my lowest………… by taking the kids to the UK you have robbed them of the chance of being with their father. This is very selfish of you but it is the kids that miss out. I hope they will forgive you for this.”

Two days later the father saw his solicitor who noted –

“Options regarding return of the children – advised not aware of any means by which he could compel them to return to Australia b/c no family court orders – both parents have ‘equal’ parental rights, can’t kidnap your own child. Will look into ………. Action look into children recovery options Eng and Australian law.”

There were further communications with the solicitor in relation to contact to his parents and their having holidays in Australia.

On 5 September 2003 the mother’s solicitors wrote to the father in Australia –

“We have been consulted by Mrs H in connection with the unfortunate marital situation that presently exists between you. We understand that you have lived in Australia for the past 16 years but that our client left the matrimonial home on 10 June 2003 and is now intending to remain living in the United Kingdom with the 2 children of the marriage on a permanent basis. Our client believes that her marriage to you has broken down irretrievably and we have advised her that if she wishes, she has sufficient grounds to issue divorce proceedings against you in the jurisdiction of England and Wales based upon your unreasonable behaviour.”

The letter goes on to deal with what was said to be 2 abusive telephone calls from the father, contact with the children and finance.

In a letter of the same date to the paternal grandparents they state –

“Our client now believes that her marriage to your son has irretrievably broken down and she is now returned to the United Kingdom with the children of the marriage and she intends to remain living in this country.”

In her divorce petition of February 2004 the mother states that it was as a result of the father’s behaviour by emotionally and verbally abusing her that she felt she could no longer continue living in that environment. She returned to the United Kingdom in June 2003. There is no mention of the father telling her to go.

The mother accepts that she never told the father that she was leaving with the 2 children permanently. She relies upon his expulsive words to her. They are in dispute. There were angry arguments at the time. The father may have used language which he subsequently regretted.

He certainly consented to the mother leaving with the 2 children. The question I have to determine is whether he consented to this being a permanent removal prior to their departure on 10 June. As Holman J. pointed out in Re: C (Abduction: Consent) (1996) 1 FLR 414, the onus is on the mother to prove that the retention was by consent. If she does that the court nevertheless retains a discretion.

He further stated, and I agree, that the consent needs to be proved on the balance of probabilities, “but the evidence in support of it needs to be clear and cogent. If the court is left uncertain, then the ‘defence’ under Article 13(a) fails”.

I find that the defence of consent has not been established. It is clear that the mother never made her views known if they were decided at that stage. What she alleges that the father said is inconsistent with what he said both before and after the family left. It was known that she was going for 3 or 4 months.

I am satisfied that both the tenor of the father’s subsequent communications and the reality was that he considered he had been deceived by the mother’s plans. She nowhere alleges that he consented at the time, her solicitors do not make the point, and it is inconsistent with his having been tricked or deceived.

I find that the question of the parties separating was a live matter when the mother left Australia with the 2 children. The question of divorce arose later as her solicitor’s letter of 5 September 2003 shows.

Angry words were exchanged between the parties prior to the departure. The mother has not however satisfied me that the father made plain before her departure that he did not want the children to ever to return. He did not at that stage agree to their staying in England and not returning to Australia. I am not satisfied that the defence of consent has been established.

I have found this a more difficult subject. It is because of the nature of the summary procedure. I have endeavoured to adopt a careful and cautious approach.

On my earlier findings the mother left with the father’s consent to an extended holiday of 3 or 4 months. Acquiescence can only arise once the father had knowledge that the mother was not after all going to return. On any view that knowledge arose not later than his receipt of the mother’s solicitor’s letter of 5 September 2003 –

“We understand that you have lived in Australia for the past 16 years but that our client left the matrimonial home on 10 June 2003 and is now intending to remain living in the United Kingdom with the 2 children of the marriage on a permanent basis. Out client believes that her marriage to you has broken down irretrievably ……….”

The father in his original application form of 7 June 2004 said that he was not aware of this until approximately late July 2003. In his statement of the same day he says that during telephone conversations when he raised the issue of her return to Australia. When he came in September it was his intent to have the children return to Australia.

The mother’s original account is that the father told her there was nothing left for her in Australia and he was moving his new girlfriend into the former matrimonial home. During his visit in September a return to Australia was never discussed. It was not until an e-mail of 30 May 2004 that he confirmed he wanted the children returned to Australia. The question that arises is why there is no such request earlier.

The father’s views expressed in his e-mails at the time are shown by that of 12 September 2003 –

“It is clear to me now (and I didn’t realise how stupid I could have been) that you never intended to come back here ………. You do realise that your fleeing to the UK has taken the children away from me. That’s probably abduction.”

On his return from his visit to England he sent a message on 15 October in which he speaks about the fact that the mother was not just taking a holiday but a premeditated escape. She did not know how hurt he was when he was asking her in the first 6 weeks when she was coming back until the penny dropped. He did not however ask for the children’s return.

It is 2 days later on 17 October that the solicitor records his advice that he was not aware of any means by which the father could compel the children to return to Australia. In evidence the father said that his top priority was to see the children. They were also consumed by debt. They had talked about the break going up to Christmas. If he did not get over the mother would come back and he would go to see if he could get work. This would be in December. The September visit was because of the change of plan.

I have found the visit by the father in September 2003 difficult to understand. He wanted and did tell the children of a separation between him and their mother. He knew by then that she did not intend to return. He went to the school and talked about future education plans. There is a surprising failure to ask her to return with the children or to discuss it.

On further reading and consideration I consider the likely explanation is as follows. The father did talk in earlier conversations about when the mother and the children were going to return home. It became apparent from her non-committal responses and the talk of a separation that she was not intending to come back. The e-mails of September and October show that he felt he had been deceived. He had asked her to return and it was by then obvious that she was not going to do so.

Within 2 weeks of his return he seeks specific advice on whether he can compel her return. He says at one stage that whilst at J’s school he knew he could not compel them to return. Whether that is or is not accurate at worst he was going along with the mother at that stage.

However the reality I am satisfied from a subjective point of view is that he wanted to know whether he could compel her return. He was advised that he could not do so. It is not easy to see why he sought that advice if he was not interested in compelling them to return. When he did receive correct advice he acted immediately. The question is whether that helps the mother who has to establish that the father acquiesced.

This gives rise to the classic dilemma of which Hoffman LJ gave an example in Re: S (Minors)(Abduction: Acquiescence) (1994) 1 FLR at p.836 where he said –

“I think that where the conduct relied upon is inactivity, it would be unjust not to take into account the reasons, whether they were known to the other party or not. Suppose, for example, that shortly after the abduction the applicant suffers an incapacitating illness of which the abductor knows nothing. I do not accept that his resulting inaction could fairly be described as acquiescence. Equally, I do not think that a party can be said to have acquiesced by doing nothing if he reasonably thought, on the basis of the advice he had been given, that there was in practice nothing which he could do.”

I find that wrong advice was given to the father on or it may have been before 17 October 2003. He acted upon it. He gave the impression to the mother that he was acquiescing. That was not the true state of affairs. He was for the substantial part of the period relying upon incorrect legal advice.

Following Re: H (Abduction: Acquiescence) (1997) 1 FLR 872, I have to consider whether the father in fact consented to the continued presence of the children in the jurisdiction to which they had been taken but upon which the intention of the mother had changed. The burden is upon the mother and I accept that she has raised a case which the father has to answer.

However, the father having raised the question of wrongful advice, the burden does not shift to him. It remains with the mother. She has to demonstrate either that he did not receive the advice, did not rely upon it or it is otherwise not to be taken into account. I do not understand that to be her case.

There are exceptions to the subjective approach set out by the House of Lords in Re: H. In my judgment the father cannot be said to have acquiesced within part of the speech of Lord Brown-Wilkinson where he said at p.882 –

“But in ordinary speech a person would not be said to have consented or acquiesced if that was not in fact his state of mind whether communicated or not.”

A little later in his speech Lord Brown-Wilkinson set out an exception. It arises where a wronged parent has so conducted himself as to lead to the abducting parent (or unlawfully retaining parent) to believe that the wronged parent is not going to insist on the summary return of the child. He cites example of the wronged parent signing a formal agreement that the child is to remain in the country or taking an active part in proceedings in this case within this jurisdiction –

“No developed system of justice would permit the wronged parent in such circumstances to go back on the stance which he has, to the knowledge of the other parent unequivocally adopted: to do so would be unjust.”

I have to consider the reasons for the father’s failure to communicate his wish for the children to return to Australia between October 2003 and May 2004. Was it because he in any event did not want them to return or went along with the situation as the wife argues? If not did he nevertheless lead the mother to believe that that was not his intention?

I have given this anxious consideration. It is a long period of time. The father does not say that he would like the children to return but he has been advised that he cannot compel them. The messages between the parties are not an indication one way or the other. I have to bear in mind the underlying purpose of the Convention namely the summary return of children to the jurisdiction from which they have been unlawfully retained in this country. I do not see sufficient clear evidence from which I can find or infer acquiescence to the necessary clear degree. It is certainly arguable but, without some doubts, I do not find it sufficiently established. I do not on balance find it proved.

To consider this in context I shall firstly outline the events in relation to the children prior to June 2003 when they left Australia. I shall consider the events between their father’s departure from his trip to England in October 2003 until they met with the CAFCASS Reporter Ms Demery on 12 July 2004. I shall revue that meeting and Ms Demery’s evidence. I shall finally consider the parties submissions and the law.

In the mother’s first account she spoke of an abusive marriage in which the father lost his temper and shouted at her and the children in unkind terms. She said the children had witnessed verbal abuse.

The father denied that he had been abusive towards the mother though he accepted that their relationship was problematic. There had been arguments.

In evidence to me the mother said that the atmosphere at home was dreadful before she left, it was absolutely appalling. The father told me that the marriage had not been happy for some time. He agreed there had been bitter conversations and that they argued a lot. They had been heated and both of them had said things they did not mean.

Having seen the parties I am satisfied that neither intended the children to become involved in their failing relationship. They did become involved because they witnessed the bitter and heated arguments when both parties to a varying extent said things in the children’s presence which were not fit for the children to hear. The major factor was the father’s anger. I am satisfied the children were very upset by this.

The father’s case is that since Christmas 2003 the mother tried to restrict his telephone communication with the children. The mother’s case is that it was the father who at times did not ring. He also upset E considerably by telling her he had burnt her pictures and drawings and that he was going to get rid of her toys. Afterwards she had difficulty in getting E to speak to her father. J was also reluctant to speak to him. She had done her best to promote contact between them.

The mother said that the father told her in October 2003 that he was taping their telephone calls. She began keeping a log of all telephone calls that were made. It recalls conversations between 18 October 2003 and 25 June 2004. The father says that it is fabricated. He has produced telephone records to show that on 2 occasions in May 2004 the number of calls recorded by the mother is not accurate.

I have considered the 22 pages of the log. It shows that between 18 October and January 2004 the mother initiated conversations much more frequently than the father. Thereafter the pattern changed with the father initiating the calls. It was sometimes with persistence on the same day.

The log shows that there was only 1 phone call from the father between 1 February and 6 March. There were another number of other weekends when there were no calls, the longest gap being between 7 April and 25 April.

I am satisfied having considered the log and heard the mother give evidence that she kept an accurate if summary log of the telephone conversations. She may not have been correct in all the missed calls that there were. It is however the content of the calls and the gaps that there were which are of some significance.

On 14 November the father was angry because of lack of contact with the paternal grandparents. He told the mother that he had moved all of their things out of the house getting rid of junk.

After he had spoken to E on 5 December she burst into tears. She said that the father had told her that he had burned her pictures, drawings and sold her baby toys, getting rid of more and burned some of her school work.

On 22 December the mother records the children as saying that their father had asked them what they wanted keeping. They both said all of their things. He said no as he was getting rid of things and clearing the house out. The mother notes that these calls were upsetting E and J.

The mother records that E on 11 January answered the phone reluctantly and was again told by the father that he was clearing all of her things out. She was very upset again.

He told her a week later he was getting rid of her things. E told him that he was not allowed to but he said he was. She was upset again.

She records trying to persuade J to talk to his father and that E said that she did not want to talk to him. It was on 29 May that the father said to the mother that he wanted the kids back in Australia. On 15 June he rang when the mother had just obtained the abduction papers. E had been present when the police came. She records the father as saying “you left me no choice, you would not let me talk to them”.

She saw the children firstly with their mother and then the 2 of them together. E understood that the purpose of her visit was to hear their objections to returning to Australia, J was less certain.

They both thought they were coming on an extended holiday. They had been shocked when their mother told them in July that she and their father was separating, but they were aware their parents were arguing a great deal.

They were also shocked to be told a few days later that they would not be returning to Australia. E did not miss friends but J mentioned one friend he did miss very much.

Their major concern on hearing that they would not return to Australia was what would happen to their possessions. E said her father had told her he was getting rid of everything. J was told that all their toys were in crates outside. He could not bear to return and see all their things like this. E had thought their father had put things on the fire and ripped up her drawings which were very special to her.

They both said their father had been mean to them. E said he had called them names and shouted at them.

E said that she did not want to talk to her father. He did not telephone when he said he would, and at other times telephoned and interrupted them. She had not spoken to her father since February. J said he had spoken since April. He did not want to talk to his father because the least he could have done was to keep their toys safe for them. It was firmly their decision not to speak to their father.

E said that what she missed about Australia were her toys, drawings and school work. Her friends a tiny bit but she had made better friends here. J missed his toys, his friends a bit and his bedroom. They both said how well they had settled and both obviously liked their school. They enjoyed their bikes more in this country and considered it better in this country.

Neither thought that they would visit their father in Australia. They said they loved their mother so much, J adding that their father was so horrible. They compared him adversely with their mother. Of the positive memories of him J remembered bikes rides and football but E could not recall any positive memories.

They were asked about going back to Australia for the courts there to make the decision about where they lived. Would they be unhappy or happy on a scale of 1 to 10? Both said 1 meaning very unhappy. J wanted his father to stop shouting and he would go for a week if he had to but E would not go even for that length of time. They became very distressed.

E was clear that she did not want to return to Australia. She specified not wanting to leave her friends in England behind and not wanting to see her father. She could not understand why she was not allowed to make up her own mind. They did not want to live with her father or for him to live with them. His cards did not say he missed them.

J too did not want to return though he was said to be more ambivalent. He did not want to move again. He enjoyed England more than Australia. He said there was no way he would go back to live there now. He would kill himself. He would ask for another family in England to look after him. He did want his father to visit them in England, remarks which seem hardly ambivalent as Ms Demery thought.

As both the children became increasingly upset the meeting was brought to an end. It transpired that they had been told that the meeting would probably last 15 minutes and they would be asked a few questions. The mother had wanted to shield the children.

Ms Demery considered that the children’s objections were based upon not wishing to have their present situation disrupted, English friends were of immense importance, their education experience, and general lifestyle. Their negative perception of their father, particularly with E, also lay at the heart of their objection.

E is described as an intelligent and articulate young person. She had some difficulty managing the stress involved. She was at an age which Ms Demery said is difficult to manage conflict in loyalties. There was an element of feeling rejected by her father. Her emphasis on the importance of friendships was age appropriate.

J was intelligent and articulate as well but was more ambivalent. She concluded that they both had an age and maturity where their views could not be likely overruled. It was a shock to them to have to consider the possibility of a return to Australia. They had spent time thinking about their objections which were somewhat nebulous “based more on the fact that they are settled in this country than any objection to Australia per se”. I have doubts about that conclusion, which is not sufficiently established.

She described the children as semi-prepared, the stakes were so high that it was a shock to them and very distressing. It was the extent to which they were settled here and the very negative picture of their father which were their major objections to returning to Australia. It was more difficult for J to say the negative, he could say the positive things.

Ms Demery told me that it would be extremely difficult for them to return. The overwhelming view was that the father had forced them and it was not what they wished for.

She described E as relatively rational but she perceived that E may have exaggerated the negative aspects to strengthen the case to remain. It was exaggerated because her views were so strong. E was angry and J joined in.

Mrs Wood emphasised the age of the children, their maturity, and their objections. They were not just to stay with their mother. They were because of the negative reaction to their father and the extent to which they had settled here with good friends and a school they seemed to enjoy more.

Miss Ramsahoye also relied upon their age. She accepted there was no minimum age but argued that objections arise more often in cases of adolescent children. She emphasised that it must be an objection to return to the state whence the children came, and not a return into the care of the applicant. Fear or dislike of the father was not the test. Objection to a return to the child’s habitual residence is. She emphasised the use of the word nebulous as reducing the weight of the children’s objections.

Finally she supported the 2 stage approach of Waite LJ in Re: S (Minors)(Abduction: Acquiescence) (1994) 1 FLR at 826, where he said –

“It is common ground that Article 13 requires a two-stage approach to issues of objection. First of all the judge has to make findings of fact on the 2 questions: Does the child indeed object; and has he or she attained an age and a degree of maturity at which it is appropriate to take account of the child’s views? Those have come to be called, for convenience, the ‘gateway’ findings. It is only if both questions are answered ‘yes’ that the judge may go on to consider whether, as a matter of discretion, the return order would otherwise be mandatory under Article 12 ought to be refused.”

I turn firstly in my considerations to the age of the children. I note that in Re: M (Abduction: Psychological Harm) (1997) 2 FLR at p.699 the Court of Appeal was considering the decision of Wilson J. who found that 2 children aged 9 ½ and 7 were sufficiently mature for their wishes to satisfy the test in Article 13. Butler-Sloss LJ, as she then was, observed that –

“I have myself some hesitation about the younger child but the elder boy at least has, in my view, to be listened to.”

Wall J., as he then was, held that the clear and rational objections of a 10 year old child were of sufficient maturity to satisfy Article 13, Re: S (Child Abduction: Delay) (1998) 1 FLR 651. Similarly Stuart-White J. held the children of 12 and 7 were each sufficiently mature for the court to consider their views, Re: B (Abduction: Children’s Objections) (1998) 1 FLR 667.

I remind myself it is not just the age of the child which I have to consider. It is also the degree of maturity and whether the combination of those factors make it appropriate to take account of the child’s views. Waite LJ in Re: S to which I have referred put it in this way –

“It is permissible (and indeed will often be necessary) for the court to make specific enquiry as to whether the child has reached a stage of development at which, when asked the question ‘do you object to a return to your home country?’ he or she can be relied upon to give an answer which does not depend upon the instinct alone, but is influenced by the discernment which a mature child brings to the questions implications for his or her own best interests in the long and the short term.”

I also bear in mind on what Wall J. said in Re: S (Child Abduction: Delay) at p.657. He pointed out and I entirely accept that where an objection is influenced by an abducting parent little or no weight is likely to be given to the children’s views. In this case I am not satisfied that there has been influence by the mother.

He referred to a passage in Re: R (Child Abduction: Acquiescence) (1995) 1 FLR 716, where Balcombe LJ said –

“………the objection must be to being returned to the country of the child’s habitual residence, not to living with a particular parent. Nevertheless, there may be cases ……..where the 2 factors are so inevitably and inextricably linked that they cannot be separated. Support for that proposition will be found in the judgment of Butler-Sloss LJ in Re: M (A Minor)(Child Abduction) (1994) 1 FLR 390.”

In the same case he extracted a number of propositions. Firstly the court is not stopped from considering the objections of a child to returning to a parent. Secondly the court has to be vigilant to ascertain and assess the reasons for the child’s objections to living with that parent. Thirdly the court has to assess the ability of the child to understand the situation and whether he or she has valid reasons for not returning.

In evidence the father told me that he had not destroyed or given away any of the children’s belongings. However I am satisfied that he told them the contrary on the telephone. It may have been because of his anger at the time or an attempt to influence the children to say they wanted to return to Australia, or some other reason. It deeply upset the children. It was one but far from the only reason for their objecting to a return.

They were aware of the rows beforehand and they understandably were very upset by what he had said on the telephone. They already had a view of their father which was far less favourable than that of their mother. This added considerably to it. It gave them one reason for objecting to a return.

They gave other reasons. He had been mean to them. He had also called them names and shouted at them. Neither of them wished to speak to him on the telephone. It was their choice.

They also gave reasons for preferring to be in England. They liked being able to play outside, they had settled very well and they had many new friends and enjoyed their school. They did not feel they could play their sports in Australia.

They indicated in the clearest terms by a scale the extent of their unhappiness about returning to Australia even, as was correctly pointed out, for a court there to make a decision where they should live. They were both very clear about not wanting to return to Australia. J describing his reaction in quite extreme language. They became so distressed that the discussion had to be concluded.

These are both intelligent and articulate children. The mother appears not to have prompted them if anything under-prepared them for what turned out to be quite an ordeal. I accept that their views cannot be lightly overruled.

In Re: S to which I have referred, Wall J. took into account in the exercise of his discretion the time which had been allowed to go passed. I accept of course that it is a relevant consideration in the exercise of the court’s discretion.

I go further. Hague Convention proceedings are intended to be swift in instigation and summary in hearing and execution. I have accepted the reason why the father did not act before May of 2004. I am however entitled to look at the objections raised by the children and take into account in assessing their weight and validity that for the best part of a year they thought they were settled here and could get on with their lives. I do so.

It is to their credit that they did settle down with success. I consider that the children are of an age and maturity where I should take account of their objections. In so far as their objections are for their present situation, that is only the reverse of an objection to returning. For that they have additional grounds. They prefer their school, where they live, and their friends. They also have a negative view of their father. That negative view has a sound basis on the father’s conduct before they left and his attitude since then.

I would have held that the children’s objections were based on a mature discernment even without the passage of one year. But that period of time must inevitably add to the weight which the children give to their objections because for such a significant period they have rightly and understandably believed they are settled. As I have indicated, a preference to stay here can be as much an objection to returning to Australia.

In this instance it is more. Weather, schools, friends, outdoor activities and their negative views of their father all influenced their decision about not returning to Australia. They have the necessary age and maturity for the court to take account of their views. They do object to returning to Australia.

I separately go on to consider the exercise of discretion. I take account of all the circumstances, in particular the nature of the children’s objections, the extent to which they have settled, the time which has passed, and their strong reaction to a return. Despite the whole tenor of the Hague Convention, I am quite satisfied it will be wrong to exercise my discretion in favour of returning the children to Australia. Accordingly for those reasons this application fails.