B, Re

These are proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereafter the Convention) and the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereafter BIIa).

In this matter I am concerned with B, now aged 9. The father of B is J (hereafter ‘the father’) and the mother of B is C (hereafter ‘the mother’). The mother and father are not married. B has been joined as a party to these proceedings in circumstances where this case raises the question of settlement under Art 12 of the Convention. All parties are of French nationality.

The father, represented by Ms Sparrow of counsel, seeks the summary return of B to France, the father alleging that B was wrongfully removed from France to this jurisdiction by the mother in January 2014 and has been wrongfully retained in this jurisdiction since that date.

The mother, represented by Ms Renton of counsel, concedes that B was wrongfully removed from the jurisdiction of France but defends these proceedings on the grounds that B is settled in England and Wales, that B objects to returning to France, that B will be at grave risk of being exposed to physical or psychological harm or would otherwise be placed in an intolerable situation if returned to France and, finally, that to return B to the jurisdiction of France is not permitted by the fundamental principles of this jurisdiction relating to the protection of human rights and fundamental freedoms.

The Children’s Guardian, Mrs Odze, has prepared a report dated 15 June 2015. Mrs Odze also supervised a contact between B and the father at court on the first day of this hearing. In her report Mrs Odze concludes that B does not object in Convention terms to a return to France. Mrs Odze further concludes that B is not settled in England for the purposes of the Convention.

The parents met in 1996 in La Reunion, a French island in the Indian Ocean. Administratively, La Reunion is an overseas ‘department’ of France and is, accordingly, an integral part of the French Republic with the same status as the ‘departments’ comprising the French mainland in Europe.

The parents never married. From 1996 to 1998 the parents resided together in Bordeaux in mainland France before returning to La Reunion. The mother alleges that from 1998 the father was frequently verbally and physically violent to her. The mother contends that this verbal and physical violence continued during the course of her pregnancy with B and after B was born. The mother has also made allegations that the father was physically violent to B. The mother states that she did not report these allegations to the authorities as the father threatened her with greater violence if she did so and because the Police in La Reunion do not, she says, take the issue of domestic violence seriously.

The father vehemently denies these allegations of violence and points to the fact that there is no evidence that the mother ever raised a complaint against him on La Reunion, to the fact that the documents evidencing the decisions of the High Court of St Denis on La Reunion with respect to B do not record any mention of domestic violence and, finally, to the fact that those documents show that the mother agreed contact arrangements between the father and B, which arrangements included his having contact with B for the duration of the summer school holidays in France. The father also exhibits to his statement letters from friends of his and the mother, the family’s doctor and B’s teacher stating that they saw no evidence that the mother or B were the victims of physical abuse.

B was born on La Reunion. The mother states that after B was born she left the father, residing initially with her Aunt in Le Port on La Reunion. The father contends that the parties separated in 2007. The mother states that she facilitated contact between B and the father for two years following the parents’ separation.

As alluded to above, there have been proceedings with respect to B in the High Court of St Denis on La Reunion. In 2008 the mother applied to the High Court of St Denis for residence of B and parental authority for him. In the interim the mother contends that the French court ordered contact between B and his father for one or two weekends per month although I have not seen an order to this effect. The mother contends that this contact impacted B adversely. The mother further contends that during this period the father failed to contribute financially for B. Once again, the father denies these allegations and maintains that he continued to have a good and unrestricted relationship with B following the parents’ separation, with B acting as a page boy at the father’s wedding to his new partner in 2009 (with whom the father has two children, half-siblings of B whom B has yet to meet).

On 11 March 2009 the High Court of St Denis on La Reunion made an order incorporating an agreement reached between the parents. Under the terms of the order parental authority was to be exercised by the parents jointly pursuant to Article 372 of the French Civil Code. The order further provided that B’s residence would be the mother’s home and that the father would have access. Finally, pursuant to the agreement between the parents, the order provides that the father pay maintenance in the sum of 150 Euros per month. The father points out that the order of 11 March 2009 gave him rights of custody in respect of B. This is not disputed by the mother.

On 19 December 2010 the mother asked the father to leave B with her in order that she could take him to see a Christmas tree erected at her place of work. On that day the mother instead removed B from La Reunion to New Caledonia, a French overseas territory and not part of the French Republic. The mother moved in order to take up a new job. The mother now concedes that she obtained neither the father’s consent, nor the permission of the High Court of St Denis for the removal of B from La Reunion to New Caledonia. Prior to the first day of this hearing, and save by means of Skype during the currency of these proceedings, the father has not seen B since December 2010.

It would appear that before the mother’s departure with B to New Caledonia on 19 December 2010 the parents had been in discussions regarding the mother moving with B to mainland France. An order of the High Court of St Denis dated 20 April 2011 shows that on 11 January 2011 the court recorded a petition by which the parents brought proceedings before the Family Court to have their agreement on procedures for exercising joint custody approved “based primarily on the mother’s departure to mainland France.” In the circumstances, it would appear that the mother’s removal of B to New Caledonia was not only without the father’s consent but in direct contradiction of the arrangements the parties had been discussing immediately prior to that removal.

The mother states that she contacted the father from New Caledonia at the end of January or February 2011 once she had in place a Skype connection. The mother contends that the father was angry and threatening during this contact and made a threat to end her life. This is denied by the father.

The mother states that the father did not ask about where she and B were and that she did not volunteer this information. The father denies he failed to enquire regarding B’s whereabouts and states that whilst in response to his questions the mother denied being in New Caledonia this was strongly suspected. The father made enquiries of schools in New Caledonia but whilst he received confirmation from one school that B had been attending, the school stated that B had left. I note that the order of the High Court of St Denis dated 20 April 2011 records that at the hearing of the parents’ petition on 14 March 2011 “a move by the mother to New Caledonia was suspected”. In the circumstances, the evidence tends to suggest that following the mother’s departure to New Caledonia the father had strong suspicions regarding the mother’s whereabouts but did not know with any certainty the location of B.

The mother’s evidence is that B spoke to the father from New Caledonia on at least four occasions whilst she and B were in New Caledonia with each of those phone calls being ended because father’s behaviour was abusive and threatening. The father states he managed three telephone conversations with B in the period shortly after the mother removed him to New Caledonia and denies being abusive and threatening.

Following the hearing of the parents’ petition on 14 March 2011 the High Court of St Denis made an order 20 April 2011 giving the mother permission to move with B from La Reunion to mainland France. The order notes the address of the mother in mainland France as being the mother’s home in Marrolles en Brie, a suburb of Paris. The order stipulates that B’s place of ‘habitual residence’ would be at that address. The order granted the father access to B during the summer school holidays in mainland France and when the father was present in mainland France. The order confirmed the father’s parental authority. The mother contends that she was unaware of the outcome of that hearing by reason of her being in New Caledonia.

Following the hearing in April 2011 the father states he believed that the mother and B were in mainland France. I note that as of 7 June 2011 the father sent a maintenance payment to the address in mainland France given by the mother in Marrolles en Brie. That letter was returned to the father undelivered. On 19 July 2011, following there being no communication from the mother regarding summer contact, the father made a complaint to the French police. In October 2011 the fathers Avocat wrote making complaint to the Procureur de la Republique.

As a result of the complaints to the police and to the Procureur de la Republique extensive enquiries as to the whereabouts of the mother were made, including enquiries by Interpol. However, whilst revealing that the mother had lived at several addresses, and suggesting at one point that the mother was contemplating a move to Canada, these enquiries failed to locate the mother. The mother has singularly failed in her evidence before this court to provide particulars of her and B’s whereabouts and their moves during this period. The enquiries by the French police eventually revealed that the mother had been residing at a number of addresses in London.

Over the course of his investigations the French Procureur de la Republique made eighteen orders for disclosure and interviewed four witnesses before ascertaining that the mother was in England. At one point the French Ministere de la Justice commenced proceedings under the Hague Convention 1996. Within the course of these proceedings, the High Court of England and Wales made nine disclosure orders and the English police visited four addresses before the mother was found.

The mother now concedes that in January 2013 she and B moved from New Caledonia to Paris, France. She further concedes that she did not inform the father of this move. The mother moved to take up a job as an administration assistant. The mother contends that she did not inform the father as to the whereabouts of herself and B due to his alleged prior threats.

The mother now further concedes that she moved with B to England on 26 January 2014, again for the purposes of taking up employment. Again, the mother concedes that she did not obtain the permission of the father or the French court for this move. The mother has remained in this jurisdiction since 26 January 2014.

It is clear on the evidence that the mother has moved extensively not only between jurisdictions, moving from La Reunion to New Caledonia in December 2010, from New Caledonia to France in December 2013 and from France to England in January 2014, but also has moved extensively between different addresses once in England.

The mother concedes in her statement that, by reason of the job she came to London for being a ‘scam’, she was initially left destitute with B and stayed in a hostel for one week before moving into another address after being taken in following an encounter with a good Samaritan on a bus. The mother concedes that she changed address “a few times” after this due to having no steady income.

The mother’s latest move with B was in April 2015 when she moved with B and her partner to a further property. The Children’s Guardian described the conditions in this latest property as “far from being adequate”, with the property being in dire need of repair. As for B’s situation in the house, the Guardian relates that there is one double bedroom and, whilst the mother told the Guardian that she and her partner sleep on the sofa and B uses the bed, the Guardian doubted that B has use of the one bed in the property. Of particular significance to the Guardian was B telling his father during the contact that has taken place at court that his watch was in a suitcase and he could not find it. The Guardian’s view is that B resides in a family which moves a lot and does not settle.

Despite the mother arriving in London in January 2014, her circumstances meant that B did not commence school in England in May 2014. The mother states that whilst she takes B to school, it is the mother’s partner, Mr K who collects him each day. B’s attendance at school is below average at 91.9% and he has missed school when the mother is ill as there is no one to take him in such circumstances. The mother has not been able to attend any parents’ evenings for B as her work precludes this. The Guardian also points out that the mother’s work hours preclude her from being available for B after school to assist with homework and talk to him about his day. Because the mother works six days per week B stays with friends from church on Saturday mornings. These people do not live in the area and one of them often travels to France.

The mother and B live in a property with no neighbours with children in the immediate area and approximately 40 minutes from the school that B attends. The mother told the Children’s Guardian that B has one close friend with whom he socialises outside school. B told the Guardian he has one best friend at school and one best friend outside school. He attends a football club on Wednesdays and Saturdays although the Guardian expressed concern that B does not have friends with whom he attends that activity. Neither the mother nor Mr K have family in England and draw support from the church at which they met. The Guardian expresses concern in her report that B has no relationship with any members of the family on his father’s side and none from his mother’s side, leaving him very isolated and dependent on his mother and Mr K. The Children’s Guardian considers that B is not a resilient child. Overall, the Children’s Guardian considers that the mother and B do not seem to have set down “roots” anywhere since they left La Reunion.

The mother commenced a relationship with her current partner, a Mr K, after meeting him at church in February 2014. The mother decided to move in with Mr K three months later in June 2014. The mother says in her statement that “Mr K treats B as his own son and B considers Mr K as his father”. Upon enquiry by the Guardian, the school indicated that it thought that Mr K was B’s biological father. Whilst the mother does not deal with any other relationships she has had since the parents separated, the father contends she was in a relationship with a Mr R for a period of three years. Neither B nor the mother has mentioned this man.

The mother told the Guardian that she has never spoken to B about his father due to the alleged domestic violence and that B has no photographs of his father as these were left in La Reunion. B told the Guardian that he does not know his father and that he already has a father who he named as “Papi K”. Whilst the Guardian had initially appeared to suggest in evidence that B considered Mr K to be his biological father she accepted Ms Renton’s proposition that the fact B called Mr K “Papi K” (as distinct from just ‘Papi’) suggested that he was aware that Mr K was not his biological father. B was however adamant in his conversation with the Guardian that he already had a “father” and wanted nothing to do with the father. B told the Guardian that he wished her to tell the Judge that “I already have a father, why do other children only have one and I have to have two?” The father relates that during his first telephone contact with B during the course of these proceedings on 3 May 2015 B said “you are not my father. Mine is called K”.

The Children’s Guardian, understandably, expressed considerable concern regarding the view that B took of this father. As well as taking the view that that B’s objections to contact with his father had the appearance of being rehearsed, the Guardian was of the view that B’s position in respect of his relationship with, and his contact with his father was an element of his not being emotionally or psychologically settled within this jurisdiction.

As alluded to already, a direct contact took place between B and his father at court on the first day of this final hearing, the father having travelled from La Reunion to England. The Children’s Guardian considered the outcome of that contact to be most illuminating when viewed in the context of the views of B that I have just recounted.

After some initial reluctance B did engage with his father. He agreed that his father could take photos and also acceded to a request from his father for a hug. B recalled a drawing that the father produced that B had done for Father’s Day some years ago. At the end of the contact, B kissed his father and hugged him of his own volition. The Guardian considered these matters to be evidence of a good attachment having been formed between father and son during the period they were in contact in La Reunion and stood in stark contrast to what B had said about his father prior to this contact.

With regard to B’s wishes and feelings in respect of returning to France, B told the Guardian during their meeting ahead of this hearing that he would like to carry on living in England until he can speak English fluently and then would like to go to Canada because it snows there and he has never seen snow and “things are cheaper there”. It will be recalled that there is evidence of the mother previously stating an intention to move to Canada. Whilst the mother ascribed B’s comment to a conversation in the home regarding a potential holiday in Canada, I agree with the Children’s Guardian that the reference to the cheaper cost of living speaks to B having heard conversations regarding a move that is intended to be more permanent. This is in my judgment evidence that yet a further upheaval for B is contemplated in the future.

B further stated that he would not like to go back to France “because I have already visited it but I would not mind going back on holidays so that I can see my old friends and have friends in all the countries that I will visit…if I can remember the way to my school in France”.

The Children’s Guardian also considered some of the things that B said whilst at court to be of significance. In evidence the Children’s Guardian recalled that when, towards the end of the contact between the father and B, she asked if B wanted to leave (meaning leave the contact room) B said “I want to stay in England”. The Guardian considered that this was evidence of B having been primed with regard to his views on returning to France. In this context I note that whilst the mother states that B objects to being returned to France, she does not give any particulars of what it is that B has said in this regard.

In addition, having said to the Guardian when he first met her that he preferred to speak French as he felt he speaks French better than English, B told the Guardian at Court (in the context of some confusion as to which ‘father’ he was due to meet) that he was from Paris, the significance for the Guardian being that this was B’s view notwithstanding his 12 months in England.

Within the context of the foregoing evidence the Children’s Guardian concludes that B is not emotionally or psychologically settled in England. Indeed, in light of the position described above the Guardian took the view that “in no sense” is B psychologically settled in England. The Guardian said she had no sense that the family had put down roots. By way of illustration, the Guardian reiterated, amongst other matters, that B’s watch apparently remains in a suitcase (although the mother contends it is an old watch in a suitcase with old clothes), he feels he might go to Canada and he does not always go to school. The Guardian further concluded that B does not object in Convention terms to returning to France.

On 2 February 2015, a little over four years after he had last seen B, the father made an application to the French Ministere de la Justice for the return of B to France pursuant to the 1980 Hague Convention. The application was sent by the French Ministere de la Justice to ICACU on 10 February 2015. Hague proceedings were commenced in this jurisdiction on 19 February 2015.

The father seeks the summary return of B to mainland France or La Reunion. In his interview with the Children’s Guardian the father made clear that the father seeks the return of B to La Reunion rather than to mainland France. However, the father now concedes that any proceedings in France should be ‘transferred’ from the court in La Reunion to the court in Paris. The father submits that, in light of the evidence set out above, none of the defences under the Convention can be made out.

The mother does not dispute that she wrongfully removed B from the jurisdiction of France. The mother however submits that the settlement defence under Art 12 is made out on the basis that, as to physical settlement, B is settled at school, in his football club, in his church community and within the context of his mother’s stable job and stable relationship. She further submits that were the court to accept that international contact could be facilitated between the father and B, this would import emotional and psychological stability for B in this jurisdiction going to the future. The mother also submits that the defence of objection is made out on the basis of what she contends are B’s objections within the meaning of Art 13. The mother also relies on the Art 13(b) defence of harm or intolerable situation. The mother invites the Court to assume the allegations made by her in respect of the father’s alleged domestic violence towards her and B are true and submits that the undertakings offered by the father are insufficient in this context. The mother further submits that to return B to France in circumstances where she has nowhere to live and no current means of securing an income would place B in an intolerable situation. Finally the mother relies on an Art 20 human rights defence. Ms Renton contends that B has a right to family life with Mr K and also with what Ms Renton terms the wider community. Within this context Ms Renton submits that returning B to France would constitute a disproportionate interference with the Art 8 rights of B and, in such circumstances, is not permitted under the terms of Art 20.

Were I to be satisfied that any of the defences set out above are made out on the evidence before the Court, the mother invites me to exercise the discretion that thereby arises by refusing an order for return of B to France.

The Children’s Guardian continues to be of the view that B is not in any sense emotionally or psychologically settled in this jurisdiction. In his submissions, Mr Hinchliffe said that whilst a degree of physical settlement is indicated by B’s membership of a football club and attendance at school, the issue of settlement is “a package”. In this context, Mr Hinchliffe reiterated that the Guardian considered that the emotional and psychological elements of that package are not present in this case. In relation to the question of objection under Art 13 Mr Hinchliffe reiterated the view of the Children’s Guardian that B’s response to being asked if he wanted to leave contact (“I want to stay in England”) was evidence of his being primed on this issue.

The mother concedes in this case that she wrongfully removed B to England from the jurisdiction of France. I have come to the conclusion that none of the defences upon which the mother relies in this case is made out and that, accordingly, an order for the return of B to the jurisdiction of France must be made. My reasons are as follows.

In considering whether B is settled for the purposes of Art 12 I bear in mind that each case turns on its facts. In Cannon v Cannon [2005] 1 FLR 169 Thorpe LJ noted as follows:

“A broad and purposive construction of what amounts of “settled in its new environment” will properly reflect the facts of each case, including the very important factor of concealment or subterfuge that has caused or contributed to the asserted delay.”

The court must look critically at any alleged settlement that is built on concealment and deceit (see Re C (Child Abduction: Settlement) [2006] 2 FLR 797 at [47]). An abducting parent should not be able to rely on his or her success in hiding the whereabouts of the child in order to evade return of the child to the relevant jurisdiction (see Re H (Abduction: Child of 16) [2000] 2 FLR 51).

I further bear in mind that the concept of “settlement” for these purposes involves three elements, namely physical settlement, emotional settlement and psychological settlement. Settlement denotes more than mere adjustment by the child to his or her new surroundings. When considering the question of settlement, the Court is not only concerned with the present but also with the position in the future. In Re C (Child Abduction: Settlement) [2006] 2 FLR 797 Sir Mark Potter held as follows at [46]:

“The word ‘settled’ has two constituents. The first is more than mere adjustment to new surroundings; it involves a physical element of relating to, being established in, a community, and an environment. The second is an emotional and psychological constituent denoting security and stability. It must be shown that the present situation imports stability when looking into the future: see the review of the relevant authorities in Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 WLR 32, [2005] 1 FLR 169, at paras [22]–[25]. The term ‘new environment’ encompasses place, home, school, people, friends, activities and opportunities but not, per se, the relationship with the defendant parent: see Re N (Minors) (Abduction) [1991] 1 FLR 413 per Bracewell J, at 417H–41HB.”

Having regard to the principles set out above, in my judgment B is not settled within this jurisdiction for the purposes of Art 12 of the Convention.

I am satisfied that the mother has deliberately sought to conceal the whereabouts of B from the father from the point she removed him from La Reunion to New Caledonia in December 2010. In my judgment the mother has made no effort to inform the father of her whereabouts, requiring him to engage the authorities in a lengthy (and no doubt expensive) search for B. It was open to the mother at any time to inform the father of B’s whereabouts.

My conclusion that the mother has deliberately sought to conceal the whereabouts of B from the father is reinforced by the fact she has in my judgment sought to remove the father from B’s contemplation. The mother herself concedes that not only has she not facilitated any form of contact but has left all pictures of the father in La Reunion, never talks to B about his father and considers Mr K to be, in effect, the father of B. In circumstances where I am satisfied that the mother’s purported defence of settlement is built on an edifice of deliberate concealment, I must inevitably look critically at the mother’s reliance on that defence in this case.

In any event, I am satisfied on all the evidence before the court, as summarised above, that it cannot be said in this case that each of the elements comprising settlement for the purposes of Art 12 are made out in respect of B. Whilst I accept Ms Renton’s submission that B’s attendance at school, at church and at football club demonstrate a degree of physical settlement, the sad evidence in this case points to a little boy who is neither emotionally nor psychologically settled in this jurisdiction. In particular:

Within this context, the evidence in this case is in my judgment not such as to demonstrate in relation to B a physical element of relating to and being established in a community and an environment or an emotional and psychological constituent denoting security and stability. Likewise, in my judgment the evidence in this case does not demonstrate that the present situation for B imports stability when looking into the future. In my judgment the evidence shows quite the contrary.

As to Ms Renton’s submission regarding the introduction of international contact importing a degree of emotional and psychological security, that submission might have some force if the Court could be confident that the mother would facilitate a degree of contact sufficient to mitigate the deficits I have identified above. I however have no confidence that she would. Her conduct over the past four years tends to suggest the opposite. In any event, given the matters I have outlined above I am not satisfied that the degree of international contact that the mother has in mind would be sufficient to mitigate the deficits in B’s stability and security in England such as to establish settlement.

Accordingly, having regard to all the evidence before the Court, having listened carefully to the evidence of Mrs Odze and the submissions on behalf of the parties and taking broad and purposive construction of what amounts of “settled in its new environment”, I am clear that the mother has failed to establish the defence of settlement in this case.

The law on the ‘objection’ defence under Art 13 of the Convention is comprehensively set out in the judgment of Black LJ in Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 and I have regard to the clear guidance given in that case. In summary, the position is as follows:

In my judgment the evidence before the court does not demonstrate that B objects to returning to France within the meaning of Art 13 of the Convention. His expressed views in my judgment amount to no more than a preference for England based on his wish to learn the language before moving on to Canada. Whilst B expressed the view that he would not like to go back to France, this was “because I have already visited it” and was followed by his stating that he “would not mind going back on holidays so that I can see my old friends and have friends in all the countries that I will visit…if I can remember the way to my school in France”.

I do of course note that the mother states that B objects to being returned to France. However, she does not give any particulars of what it is that B has said in this regard. The mother in her statement says simply that B objects to leaving England as he has started a new life here with friends and considers England to be his home. The mother gives no particulars about what B has said to her or others.

On the evidence before me I in any event have some doubts about whether B has attained an age and degree of maturity at which it is appropriate to take account of his views. In particular, the evidence of the Children’s Guardian is that B was not able to demonstrate understanding of the consequences of his assertions to the Guardian.

Finally, in considering whether B’s stated views amount to an objection for the purposes of Art 13 I also bear in mind the evidence that tends in my judgment to suggest that B has been primed to an extent in respect of this issue. The Children’s Guardian is clear that B has been drawn by his mother into the conflict between the parents. The Guardian considered that the reasons B gave in relation to his not wanting contact with his father appeared to be rehearsed. Within this context, I recall particularly the evidence of the Children’s Guardian that when, towards the end of the contact between the father and B, she asked if B wanted to leave the contact room B said “I want to stay in England”. The Guardian considered that this was evidence of B having been primed with regard to his views on returning to France.

On all the evidence available to the Court, including but not limited to the evidence of the Children’s Guardian that B does not object to returning to France within the meaning of Art 13 of the Convention, I am not satisfied that an Art 13 defence of objection is made out in this case.

The Supreme Court considered the test to be applied when assessing whether the defence under Art 13(b) of the Convention is made out in Re E (Children)(Abduction: Custody Appeal) [2011] 2 FLR 758. The applicable principles may be summarised as follows:

Dealing first with the last point in the foregoing list, there is no evidence in this case that a return to France would raise anxieties in the mother of a level that would lead to B being placed in an intolerable situation. Notwithstanding the mother’s extensive allegations of domestic violence against the father, and an allegation that he threatened to end her life, nowhere in her statement does the mother assert that a return to France would cause her such anxiety.

As to the allegations of historic violence in this case, the parents’ evidence is diametrically opposed on this issue. In the context of the summary nature of these proceedings, which can lead to difficulties where serious allegations are raised by one party and denied by the other, the appropriate course is for me to first consider whether the allegations made by the mother would, if true, give rise to a grave risk that B would be exposed to physical or psychological harm or otherwise placed in an intolerable situation if an order for return to France were made. If I so find, then I must ask myself how B can be protected from such risk by assessing what protective measures might be available and their efficacy dependent on the facts of the case. If I find that there are no protective measures that will appropriately mitigate the risk I will need to do the best I can to resolve the disputed issues.

If it is true that the father subjected the mother to a sustained campaign of domestic violence prior to, during and following her pregnancy with B, which violence extended to the physical abuse of B (and it must be observed that there is no evidence that it is true beyond the bare assertion of the mother) then I am satisfied that this would give rise to a grave risk that B would be exposed to physical or psychological harm or otherwise placed in an intolerable situation if returned to a situation in which the father’s contact with the mother and B in France was not regulated pending the determination by a French court of the allegations and the substantive welfare issues in this case.

In order to protect B from such a putative risk, the minimum safeguards that are required pending determination of the allegations are in my judgment (i) B remaining in the care of his mother, (ii) the presence injunctive orders or undertakings prohibiting the father from assaulting or molesting the mother, (iii) the supervision of any contact between B and his father. These are precisely the provisions that the father has agreed to submit to upon the court making an order for the return of B. In the circumstances of this case, and having regard in particular to the fact that the father accepts that the mother will return to mainland France, the fact that the Father is returning to La Reunion pending determination by the French court of the substantive welfare issues in this case and the fact that the father accepts that the French proceedings should be transferred from La Reunion to be heard in Paris, these protective measures are in my judgment sufficient to protect B from the putative risk.

Ms Renton further submits that the return of B to France would result in him being placed in an intolerable situation in circumstances where the mother’s circumstances mean that she does not have an income or housing in France. Whilst I accept that to return B to a situation in which there is no provision for accommodation and subsistence would place him in an intolerable situation, in my judgment this is addressed by the following matters:

Having regard to all of the evidence before the court, and assuming for the present purposes that there is a grave risk that B would be exposed to physical or psychological harm or otherwise placed in an intolerable situation were protective measures as described above not put in place, I am satisfied that the protective measures set out above will appropriately mitigate the putative risks that I have assumed for the purpose of evaluating the Art 13(b) defence in this case. In such circumstances, by virtue of Art 11(4) of BIIa, I cannot refuse to return a child on the basis of Art 13(b) of the Convention as it is in my judgment established that adequate arrangements have been made or will shortly be made to secure the protection of B after his return

Finally, Ms Renton submits on behalf of the Mother that Art 20 of the 1980 Convention applies in this case and that returning B to the jurisdiction of France under the provisions of Art 12 is not permitted by the fundamental principles of England and Wales relating to the protection of human rights and fundamental freedoms.

Art 20 of the 1980 Convention is not incorporated into domestic law by the Child Abduction and Custody Act 1985 but is available by operation of the Human Rights Act 1998. In Re D [2006] UKHL 51 at [65] Baroness Hale of Richmond noted:

“Such arguments are not, however, always irrelevant in Hague Convention cases. Article 20 of the Convention reserves the right of member states to refuse to return a child if "this would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms". Article 20 is not incorporated into the Child Abduction and Custody Act 1985. At that stage, there was no human rights instrument incorporated into United Kingdom domestic law. The Human Rights Act 1998 has now given the rights set out in the European Convention legal effect in this country. By virtue of section 6 of the 1998 Act, it is unlawful for the court, as a public authority, to act in a way which is incompatible with a person's Convention rights. In this way, the court is bound to give effect to the Convention rights in Hague Convention cases just as in any other. Article 20 has been given domestic effect by a different route.”

Art 20 of the 1980 Convention provides as follows in respect of the ‘defence’ it articulates:

“The return of the child under the provisions of Art 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

The wording of Art 20 makes clear that the court may only refuse to return the child under that provision where the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms would not permit such a return.

Within this context, the Perez-Vera Explanatory Report on the 1980 Hague Convention says at [118] that to be able to refuse to return a child on the basis of Art 20 it is necessary to show that the relevant fundamental principles of the requested State (in this case the United Kingdom) concerning the subject matter of the Convention do not permit it, and that it will not be sufficient to show merely that the return would be incompatible, or even manifestly incompatible, with those fundamental principles. Within this context the Perez-Vera report emphasises “the always clearly exceptional nature of this provision’s application”.

There are very few reported decisions concerning the application of Art 20 but those that there are tend also to emphasise its narrow application. By way of example, in the Canadian case of Director General, Department of Families Youth and Community Care v Rhonda May Benett [2000] Fam CA 253, the court held that Art 20 is extremely narrow in its application and should only be invoked on the rare occasion that a return would utterly shock the conscience of the court or offend all notions of due process. The domestic courts have likewise recognised that the Art 20 defence can only be established exceptionally (see SP v EB and KB [2014] EWHC 3964 (Fam) at [22]). Finally, as an exception to the general rule articulated by Art 12, Art 20 should, as a matter of general principle, be interpreted narrowly.

Having regard to the plainly narrow scope of Art 20, in what circumstances would the fundamental principles of the United Kingdom (as the requested State) relating to the protection of human rights and fundamental freedoms not permit a return where the grounds for return are otherwise made out? Within the context of “the fundamental principles…relating to the protection of human rights and fundamental freedoms” of the United Kingdom, it seems to me that the answer is where, and only where, to grant a return order would be to act in a way that is incompatible with a Convention right for the purposes of the Human Rights Act 1998 s 6(1), the granting by the court of a return order in such circumstances being unlawful within the terms of s 6(1).

The fundamental principles of the United Kingdom relating to the protection of human rights and fundamental freedoms comprise, inter alia, those set out in the ECHR as given effect in domestic law by the Human Rights Act 1998. Under ss 6(1) and s 6(3) of the 1998 Act the Court is required to act in a way that is compatible with the Convention rights of those whose rights are engaged in a given case. By the terms of s 6(1) it is unlawful for a public authority (including a Court) to act in a way which is incompatible with a Convention right. The obligation of the Court under s 6(1) of the 1998 Act is engaged in litigation between private parties where the Convention has effect on the legal relationships between those parties.

Whilst the Perez-Vera Explanatory Report on the 1980 Hague Convention says that for Art 20 to be engaged it will not be sufficient to show merely that the return would be incompatible, or even manifestly incompatible, with those fundamental principles, within the context of considering ‘the fundamental principles…relating to the protection of human rights and fundamental freedoms’ in the United Kingdom as the requested State, incompatibility with those fundamental principles has a very specific effect. Namely, pursuant to s 6(1) of the 1998 Act, incompatibility operates to render the return unlawful.

Accordingly, in the context of proceedings under the 1980 Convention and by way of example, if it is established to the satisfaction of the Court that the making of a return order constitutes a disproportionate interference in the Art 8 rights of one or more of those whose Art 8 rights are engaged by the proceedings, the court is prohibited by the terms of s 6(1) of the 1998 Act from taking such a course of action, that course of action being incompatible with the Art 8 rights engaged and hence unlawful by reference to the terms of s 6(1). In such circumstances, the fundamental principles of the United Kingdom relating to the protection of human rights and fundamental freedoms would operate so as not to permit a return for the purposes of Art 20 of the Convention.

An example of the operation of Art 20 in the domestic context is the decision of Mostyn J in SP v EB and KB [2014] EWHC 3964 (Fam). In that case Mostyn J was satisfied that a return order would violate a 14 year old child’s right to respect for family life under Art 8 of the ECHR in circumstances where she had been within the jurisdiction living with her mother and maternal grandfather for a period of 17 months during which time she had developed what Mostyn J described as a “society of friends” and had engaged in education. In circumstances where the defence of settlement was not available (and being satisfied that the objection defence and the harm defence were each made out) Mostyn J found the defence under of Art 20 made out in circumstances where an order for return would have violated the child’s right to respect for family life under Art 8 having regard to her established situation in the jurisdiction.

In the present case Ms Renton particularises her submission in respect of Art 20 by contending that B’s Art 8 right to respect for family life is engaged in this case, that a return order will result in a disproportionate interference with his right to respect for family life with Mr K and with, as Ms Renton puts it, the wider community and, accordingly, that a return order would be incompatible with B’s Art 8 rights. In such circumstances, Ms Renton submits that the fundamental principles of the United Kingdom relating to the protection of human rights and fundamental freedoms do not permit a return of B to France. Recognising as I do her industry and ingenuity, I cannot accept Ms Renton’s submission.

I agree that B has ‘family life’ with both his mother and Mr K for the purposes of Art 8 based on the factual history I have recounted above. The mother and Mr K also have a right to respect for their family life with each other. It is also important to recognise that B and his father have ‘family life’ in circumstances where I am satisfied that there is evidence in this case (in particular from the contact that has taken place at court) of the real existence of close personal ties between B and his father.

I do not however accept that B has ‘family life’ with his wider community. As already alluded to, the existence or non-existence of ‘family life’ for children is a question of fact depending on the real existence of close personal ties between the child and others (see K v United Kingdom (1986) 50 DR 199). In EM (Lebanon) v Secretary of State for the Home Department ALF intervening [2008] 1 All ER 539 at [37] Lord Bingham said as follows:

“Families differ widely, in their composition and in the mutual relations which exist between the members, and marked changes are likely to occur over time within the same family. Thus there is no pre-determined model of family or family life to which article 8 must be applied. The article requires respect to be shown for the right to such family life as is or may be enjoyed by the particular applicant or applicants before the court, always bearing in mind (since any family must have at least two members, and may have many more) the participation of other members who share in the life of that family. In this context, as in most Convention contexts, the facts of the particular case are crucial.”

Having regard to the conclusions I have reached above regarding the purported defence of settlement, I am not able to identify on the evidence available in this case the real existence of close personal ties between B and members of the wider community in which he lives at present.

Having accepted that B has ‘family life’ with his mother and Mr K, I further accept that an order for return will, if Mr K does not travel with the mother and B to France, constitute an interference with the Art 8 right to respect for family life of both B and Mr K. In circumstances where the mother will be travelling with B to France if a return is ordered I am not satisfied that such an order would constitute an interference with the Art 8 right to respect for family life of the mother with B but it would interfere with her family life with Mr K if he does not travel. It is again important to recognise that the father’s Art 8 rights are also engaged in this case, that the father too has a right to respect for his family life with B.

However, whilst I am satisfied that family life exists between B and Mr K and between the mother and Mr K, and that an order for return will, if Mr K does not travel with the mother and B, constitute an interference with the Art 8 right to respect for family life of B, the mother and Mr K, I am also satisfied that the interference in the Art 8 right to respect for family life of B, the mother and Mr K is necessary in this case having regard to the terms of Art 8(2) and, accordingly, proportionate.

In my judgment, in circumstances where (a) B’s situation in England is unsettled and precarious for the reasons articulated above; (b) the mother will be travelling with B to France should a return order be made and will have care of him pending determination by the French court of the substantive welfare issues in this case; (c) B and the father also share a right to respect for family life; (d) the purpose of a return order would be made to ensure B’s relationship with both parents can be determined by the court of the jurisdiction from which he was removed; and (e) the return contemplated would be for the limited purposes of ensuring the substantive welfare issues in this case are dealt with by the French court rather than being necessarily permanent in nature, the interference in B’s Art 8 right to respect for family life with Mr K and the interference in the mother’s right to respect for family life with Mr K constituted by a return order is in my judgment proportionate to the legitimate aim of ensuring that B is returned to his country of habitual residence for the limited purposes of permitting the substantive welfare issues concerning B to be resolved definitively by the courts of that country, and the wider legitimate aim of ensuring that the important objectives of the 1980 Convention are met in this case.

In circumstances where the interference in the Art 8 rights engaged in this case constituted by an order for return is in my judgment proportionate to the legitimate aim pursued, it cannot in my judgment be said in this case that the fundamental principles of the United Kingdom relating to the protection of human rights and fundamental freedoms do not permit a return order to be made having regard to the narrow terms of Art 20.

In the circumstances, on all of the evidence available to me and having regard to the foregoing analysis, in my judgment the Art 20 defence is not made out in this case.

In conclusion, in my judgment and on the basis of the evidence available to me, none of the defences under the 1980 Convention relied on by the mother are established. In such circumstances the courts discretion does not arise.

Accordingly, I am satisfied that I must make an order for the return of B to the jurisdiction of France subject to the undertakings offered by the Father. In addition to the undertakings offered to the court to date, it is my expectation that he will also offer undertakings regarding the payment of maintenance to the mother pursuant to the order of High Court of St Denis on La Reunion and an undertaking to ensure the transfer of the proceedings in La Reunion to the appropriate court in Paris.

That is my judgment.