H v K (Return Order)

This is an application pursuant to the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for an order for the summary return of two children to the jurisdiction of the United States of America. The children who are the subject of the application are B, born in 2006, and now aged 10 years old and M, born in 2008, and now aged 9 years old. The children are separately represented in these proceedings.

The Applicant father is H (hereafter ‘the father’). The father is 70 years of age and is a US citizen. He is a retired District Attorney. The father is represented by Miss Jacqueline Renton. The Respondent mother is K (hereafter ‘the mother’) and is 54 years of age. The mother currently cares for the children at a property in England. She is represented by Mr Edward Devereux, Queen’s Counsel. Ms Shabana Jaffar appears on behalf of the children. Each of the advocates in this case is to be much commended for the considered and concise manner in which they have made their respective submissions to the court, which approach is consistent with the summary nature of this final hearing.

The father seeks an order for the summary return of the children to the United States and, specifically, to the jurisdiction of Hawaii. He alleges that the mother wrongfully retained the children outside the jurisdiction of the United States from 18 July 2017. Within this context, the mother accepts the following matters:

At the time the mother retained B and M outside the jurisdiction of the United States they were each habitually resident in that jurisdiction for the purposes of Art 3 of the Convention;

Both B and M were below the age of 16 at the time the mother retained them outside the jurisdiction of the United States and remain so;

The father did not consent to the retention of B and M outside the jurisdiction of the United States;

The retention of B and M outside the jurisdiction of the United States was wrongful for the purposes of Arts 3 and 12 of the 1980 Hague Convention;

At the date the father commenced proceedings both B and M had been in the jurisdiction of England and Wales for less than 12 months;

The courts in the United States are seised of proceedings concerning the welfare of B and M, which proceedings were ongoing at the time of their retention and remain ongoing.

Within the context of the foregoing concessions, the mother now resists the return of the children on two grounds under the 1980 Convention. First, pursuant to Art 13(b) of the Convention, that the summary return of the children to the jurisdiction of their habitual residence would expose each of the children to physical or psychological harm or otherwise place them in an intolerable situation. It was clear from the submissions of Mr Devereux that the mother relies primarily on the contention that the return of the children to the jurisdiction of the United States would place them in an intolerable situation. Second, pursuant to Art 13 of the Convention, that the children object to their return to the jurisdiction of their habitual residence and have each attained an age and degree of maturity at which it is appropriate for the court to take account of their views.

In determining this matter, I have had the benefit of two bundles of documentary evidence, including a bundle containing the documents from the proceedings which are ongoing in Hawaii. In particular, I have had the benefit of reading four statements from the father (the first statement being one prepared on his behalf), two statements from the mother, a report and an addendum report from the Children’s Guardian and a report and an addendum report from a jointly instructed expert in the law as it pertains in the State of Hawaii. Each advocate has lodged with the court a Skeleton Argument.

Each advocate also lodged with the court a separate Skeleton Argument dealing with the issue of international judicial liaison, in response to a request by the mother that the court do engage in such liaison. In the event, the mother has, very sensibly, not pressed that request at this final hearing and accordingly I say no more about that issue.

The background can be shortly stated. The parties met in 2004, commenced co-habitation in 2005 and married in May 2006 in New York State, living initially in Colorado. As I have already observed, B was born in October 2006 and M in 2008.

In November 2008, a property was purchased by the father in Hawaii and the family moved there in 2009. They remained in Hawaii until October 2012. In October 2013, the mother and the children returned to Hawaii, the father says without his consent. The father thereafter went to Hawaii. Following a further period the parties’ marriage disintegrated and the mother filed for divorce on 15 October 2014.

On 12 April 2015, the father alleged that the mother hit B with a spoon, causing bruising. On 12 May 2015, the mother filed a petition with the court in Hawaii for a restraining order against the father alleging domestic abuse. That petition was dismissed for insufficient evidence on 28 May 2015.

During the course of that hearing on 28 May 2015, the court in Hawaii determined that the father was the more credible witness. The transcript of the judgement from that hearing, which is before this court, indicates that the court formulated the issue before it as one of whether there was sufficient evidence to establish that domestic abuse (defined as actual or threatened physical harm, bodily injury or assault) had occurred in respect of two alleged incidents on 8 April 2015 and 15 April 2015. In evaluating the parties’ testimony, the court found as follows (the respondent being the father and the petitioner the mother):

On 10 May 2015, B informed her mother that on two occasions the parties’ next-door neighbour had touched her inappropriately. B repeated that allegation to a paediatrician on 11 May 2015. B also restated the allegations to a psychologist on 21 May 2015. On 19 June 2015, the mother filed a petition ex parte against the next-door neighbour and a temporary restraining order was granted.

Proceedings between the parents in Hawaii continued. On 9 October 2015, the court approved a Custody Evaluator. The court ordered that the parents have joint legal and physical custody of the children, with physical custody alternating on a weekly basis with arrangements made for contact. A mutual non-removal order was made, prohibiting the removal of the children from the county of Hawaii without the consent of the other parent or the permission of the court. Various other provisions were made in respect of the maintenance of the children.

On 6 November 2015, the mother applied for a further restraining order against the father and an order was granted ex parte. That order was discharged by agreement on 16 November 2015 when the parties agreed to submit to a mutual restraining order. On 8 April 2016, the mutual restraining order was dissolved by agreement.

On 8 April 2016, the court in Hawaii granted the mother permission to take the children to London to attend a memorial service for their maternal grandmother. The order clearly prescribed the period to which this permission applied, namely from Tuesday 5 July 2016 to Monday 18 July 2016. The same order granted the father permission to take the children to New York from 26 May 2016 to 9 June 2016, with which order the father complied.

Prior to the departure of the mother and the children to the United Kingdom, the Custody Evaluator, a Dr N, was continuing his work and made a home visit to the mother on 5 May 2016. Whilst in his Skeleton Argument Mr Devereux seeks to suggest that Dr N had only limited involvement with the children, it is plain on the evidence that she had been working with the family pursuant to an order of the court of 19 October 2015 from the end of 2015 to July 2916. Amongst other matters, the order of the court in Hawaii provided for Dr N to determine whether there should be a psychological assessment of the family. Dr N decided that such an assessment was required and it was intended that that assessment would be conducted by a Dr C between 28 July and 28 August 2016.

The court has before it information (in the form of email correspondence between Dr N and the Children’s Guardian and between Dr N and Ms Jaffar) regarding the stage Dr N’s evaluation had reached at the time the children were retained unlawfully outside the jurisdiction of the United States in July 2016. The following matters are of relevance to this court’s determination:

The father and the children related well together. On the day Dr N visited the father and the children, M frequently approached the father unsolicited and crawled onto his lap and hugged and cuddled with laughter. The relationship between M and his father was observed to be spontaneous, affectionate and filled with humour. B also engaged well with her father, sharing family photos with Dr N and reminiscing with her father and her brother about the different places they had been to.

The father was encouraging and supportive to the children and devoted to them. His parenting style was authoritative and his interactions appropriate. He was a generous provider to the children both in terms of time and finances.

There were no concerns about the father’s capacity or decision making ability with regard to best interests decisions for both children.

The mother engaged with the children using a permissive style of parenting and appeared close to both children, particularly B.

It appeared to Dr N that the B had been coached by the mother to present unsolicited information to Dr N.

Both B and M are proximate to their respective chronological ages in terms of most developmental markers. Neither met the criteria in Hawaii for their views on residence to be determinative.

At the time the children left the jurisdiction of the United States M was very loving to his father. B was cordial but was, in Dr N’s view, clearly being coached by the mother.

The mother alleges that on 4 July 2016 B told her that the father had punched her, B, in the stomach during a visit to Walmart on 27 June 2016. The mother further alleged that M told her that the father had punched him in the stomach the day before he was participate in a marathon on 18 June 2016. The father vehemently denies these allegations.

When speaking to the Children’s Guardian, M stated that his father had “hit B and me before and punched my mum”. He said that this incident involved his father punching him in the stomach at home and that his ribs hurt for a long time. He also described an incident, which he thought happened in 2015, in which his father attempted to run over his mother and twisted her arm causing a big bruise and also punched her on the arm. It is note that the mother makes no such allegation in her statement nor does she allege that the father punched her as asserted by M. M said he had seen all of these things but B had not. When speaking to the Children’s Guardian, B stated that the parents had had verbal fights but not physical fights. It is of note that B did not volunteer to the Children’s Guardian that she had been punched by her father at Walmart on 27 June 2016.

In her statement the mother makes limited further allegations, namely that the father was “verbally abusive and threatening” to her. She also repeats the allegation that the father was viewing child pornography. With respect to the latter allegation, the mother offers in her statement before this court a rather sanitised account of the plainly dismissive view the court in Hawaii took of the allegation. The mother further makes clear that at the hearing at which she made that allegation she thereafter consented to overnight contact between the children and their father. The mother contends in her statement that her Divorce Attorney has “advised me not to return to the United States with the children for our safety and wellbeing under any circumstances.”

On 5 July 2016, and pursuant to the permission granted by the court in Hawaii on 8 April 2016, the mother flew to London with the children via Los Angeles. As I have already noted, rather than return the children to the jurisdiction of the United States on 18 July 2016 as required by the order of the court in Hawaii, the mother wrongfully retained the children. Indeed, it is now apparent that the mother took the children first to France, then to the Spanish mainland and then to Tenerife, where she remained until 26 November 2016 when she returned with the children to the jurisdiction of England and Wales. I agree with the view of the Children’s Guardian that it is likely that the mother took these steps to avoid detection and to keep the children from their father.

Indeed, with the benefit of evidence gathered during the course of these proceedings, it is clear that the mother’s wrongful retention of the children outside the jurisdiction of the United States was plainly pre-meditated. Witness depositions from the proceedings in the United States indicate that the mother had contemplated leaving the jurisdiction with the children for a long time and had the assistance of others in doing so and when seeking to cover her tracks. In her sworn statement before this court the mother states in terms that:

Following the mother’s wrongful retention of the children outside the jurisdiction of the United States, the father returned to the court in Hawaii. On 8 August 2016, following a contested hearing, the court in Hawaii ordered that the mother return the children to the jurisdiction of the United States, granted full custody of the children to the father and suspended the visitation rights of the mother. The mother failed to comply with the order to return the children. The order of 8 August 2016, including the order granting full custody of the children to the father, subsists.

The court in Hawaii also took steps to locate the whereabouts of the mother and the children, including subpoenaing documentary evidence and witnesses. On 21 October 2016 the father made an application to the United States Central Authority and was advised to make his application under the 1980 Hague Convention in this jurisdiction. The father commenced proceedings in this jurisdiction on 8 December 2016, on which date Roberts J made a without notice location order. The mother and the children were located at the home of a maternal aunt on 22 December 2016.

In addition to the actions taken by the court in Hawaii, the Central Authority of the United States and this court, on 3 January 2017, the State of Hawaii issued an arrest warrant for the mother. The father also made a complaint to the Federal Bureau of Investigation (hereafter ‘the FBI’), child abduction being a federal crime in the United States. It is not clear whether the FBI has launched an investigation in response to this complaint. On 10 March 2017, the US State Department confirmed that the FBI does not respond to questions about the existence of an ongoing investigation or comment on the nature or progress of any investigation that is being undertaken. In the circumstances, whilst the father has taken steps to have the State warrant of arrest recalled and to have a motion for nolle prosequi heard by the Court in Hawaii with respect to prosecution by the State, it is not possible to say with any certainty whether the mother would face a federal arrest warrant and a federal prosecution for child abduction upon her return to the United States.

On 9 February 2017, Francis J joined the children as parties to the proceedings and Mr McGavin was appointed as their Children’s Guardian. The court has before it a final report and an addendum report from the Children’s Guardian.

The Children’s Guardian met with the children on 31 January 2017 and evaluated their wishes and feelings with respect to returning to the United States. By the time the Children’s Guardian saw the children, they had had some contact with their father and the Children’s Guardian, and the court, has had the benefit of seeing contact notes recording the progress of that contact. I agree with the observation of the Children’s Guardian that the provision of detailed contact notes from a contact supervisor has greatly assisted in illuminating the children’s state of mind and their respective relationships with their father.

With respect to the contact sessions, the Children’s Guardian makes the following observations with respect to the contact between M and his father:

The father’s conduct during contact is largely patient and child centred (barring one incident of dispute with the contact supervisor over the presence of other family members).

The contact on 16 January 2017 saw the father consistently display emotional warmth to M through verbalisation and open, friendly body language and statements that he is proud of him. M presented as relaxed, smiling at his father and touching his beard.

Similar summaries are seen for the contacts between the father and M on 18, 20 and 21 January 2017. On each occasion the supervisor noted that M would go to his father and hug him at the commencement of contact and would hug and kiss him goodbye at the end of contact.

The conversation seen between the father and M at contact was reciprocal. M made enquiries about the house in Hawaii and his possessions in Hawaii.

By marked contrast, during the last contact session on 2 March 2017 M demonstrated an “alarming change” in behaviour and demeanour towards his father, physically moving away from him when his father approached him, avoiding eye contact, ignoring him and not engaging with him other than to say he would “rather be dead than see him”.

With respect to the views expressed by M, who is 9 years old, to the Children’s Guardian on 31 January 2016, the following matters are of relevance:

M engaged well with the Children’s Guardian and thought carefully about what he said, correcting the Children’s Guardian when he, M, thought he, the Guardian, had misunderstood.

When asked about America M said “I didn’t like America that much. I was born there but I didn’t like it’ going on to say ‘I prefer England’. He said he didn’t like America because ‘you could buy guns from gun shops’ and that there was ‘drink driving and lots of accidents in cars’.

When asked his views about remaining in the United Kingdom he said “100% I would want to stay here, not in America…because I really dislike a lot of America, I really like England a lot, it’s a nice place, I like it a lot better”. He went on to say he would hate to go back to America because “I don’t want to live with my dad. I don’t like living in America, I prefer England”.

The Children’s Guardian carried out a diagrammatic scaling exercise with M on how he would feel “if the Judge says he has to go back to America”. M definitively chose ‘10’ indicating he “would hate to go back”. He rationalised this view by explaining that he did not want to live with his father. When the Children’s Guardian asked him how he would feel about returning to the United States and living with his mother, he said that he “would prefer to stay in England with my mum; if I have to go back I would prefer staying with my mother 100%”. When the Children’s Guardian asked M about having contact with his father if he, M, remained in England, M said “I wouldn’t want to see my dad, because he punched me, we gave him a lot of chances, he didn’t take those chances”. When the Children’s Guardian spoke to M on 4 May 2016, M told the Children’s Guardian that he did not want to meet the Judge but that “I just want to make it clear I don’t want to go with my dad whatsoever”.

With respect to contact between B and her father, the Children’s Guardian observes as follows from his consideration of the contact recordings:

At the start of the first contact B refused to say hello to her father, would not look at him and took hold of the supervisor’s hand firmly. She refused to engage positively with her father.

B’s demeanour at contact was consistent and her contact terminated prematurely, at her own instigation, on each occasion.

The contact supervisor formed the view that B manipulates M during contact be telling him what to say to his father.

B delivered hostile comments to her father, for example “you’re utterly disgusting and treated us like dogs”. She tells him she hates him. A comment by B that the father “will be sorry” when she chooses to go with the mother suggests to the Children’s Guardian an unhealthy perception and considerable emotional burden for a 10-year-old child.

In contrast to these matters, at the final contact on 2 March 2017 there was what the Children’s Guardian describes as “a baffling indication of affection” from B when her father told her that he loved her and B turned around and waved.

With respect to the views expressed to the Children’s Guardian by B on 31 January 2016, after some initial success, B became upset when the Children’s Guardian tried to explore with B further her feelings and the meeting had to be terminated. Before this occurred, the following matters stated by B are of relevance:

When asked about life in America, B stated that she didn’t really like it in America, that she never got to see her mother’s family (being sad that she did not get to see her grandmother more before she died), that she didn’t like her schooling much and that she didn’t really have any friends.

With respect to the shared care arrangement in Hawaii, B said she loved her week with her mother but that she hated the week with her father, stating “he’s really too old, he can barely hear or see he was really rude to us by joking around, he would tease us.” B had difficulty saying anything nice about her father, although she said he had given her a little bracelet. The Children’s Guardian considered some of her responses to be contradictory, for example stating that the father “did say nice things but did not praise us”.

When B became upset in the meeting with the Children’s Guardian she asked to go to her mother. When she came back with her mother, who left her with the Children’s Guardian, B stood with her back to the Guardian to the extent that he considered the interview should be terminated. B then said:

Within the foregoing context, with respect to M, the Children’s Guardian considers that his level of maturity is in line with his chronological age. Within the context of the statements by M that I have recounted, the Children’s Guardian expressed concern about the somewhat contradictory reasoning provided by M, and the unusual context in which his objections were placed having regard to his references to guns and drink driving. However, the Children’s Guardian is satisfied that M does object to returning to the United States and that he is of an age and degree of maturity at which it is appropriate to take account of his views.

The Children’s Guardian makes clear in his addendum report that he is particularly concerned with respect to the most recent and marked change in M’s presentation at contact with his father. There is no apparent incident that might explain this by reference to the actions of the father. In his final report the Children’s Guardian describes the change in M between the previous contacts in January 2017 in which, as can be seen, M and the father were observed to have warm interactions despite a six-month hiatus in contact, and the contact on 2 March 2017 as difficult to explain without considering maternal influence as a factor. Within this context, the Children’s Guardian notes Dr N’s views with respect to the coaching of B by the mother and the views of the contact supervisor regarding B’s influence on M.

With respect to B, the Children’s Guardian is likewise of the view that her level of maturity is in line with her chronological age but that an assessment is complicated by her fragile state. The Children’s Guardian is satisfied that B objects to returning to the United States and that she is of an age and degree of maturity at which it is appropriate to take account of her views. He is however particularly concerned about B’s emotional state, observing as follows:

Within this context, if the court concurs that, for the purposes of Art 13 of the Convention, the children object to returning to the jurisdiction of the United States, the Children’s Guardian considers that the court should exercise the discretion that remains at large in such circumstances and order summary return of the children. In particular, the Children’s Guardian states as follows:

The Children’s Guardian is of the view that the father has exhibited considerable sensitivity to both children during contact, with notable patience in the way he has handled the extreme hostility from B. The Children’s Guardian considers that the ease with which M re-engaged with his father in January 2017 after a six-month separation indicates the strength of his attachment to his father (making it all the more difficult to explain his radical change of demeanour towards his father on 2 March 2017).

Notwithstanding this, and having regard to the matters I have outlined, the Children’s Guardian considers that whilst the children should be returned to the jurisdiction of the United States forthwith for their welfare to be determined in the jurisdiction of their habitual residence, this should not at this stage mean a return the care of their father in circumstances where to move too fast would be counterproductive to rebuilding his relationship with his children. Within this context, the Children’s Guardian emphasises the need for further work to be done with the children before any welfare decisions are taken in the United States. The Children’s Guardian highlights the view of Dr N that the following steps will need to be taken if the children return to the jurisdiction of United States in order for properly informed welfare decisions to be made:

Dr N needs to complete the outstanding elements of her work, namely psychological testing of the mother and psychological and psycho-educational testing of the children (to be completed by Dr C). The testing needs to be scheduled promptly.

Once evaluated, both children need to be seen in therapy with a neutral experienced professional equipped to work with children as they transition back to their home in Hawaii. The therapy needs to commence soon after their return to Hawaii.

In light of the changes the children have experienced and the complexity of the case, Dr N will undertake two more home visits with the children to observe parent-child behaviours in order to inform her recommendations to the court in Hawaii regarding custody and parenting time. Dr N will also wish to see the children in their schools.

There is a further hearing in the proceedings before the court in Hawaii next Tuesday, 16 May 2017. The father makes clear in his third statement that in the event that this court decides to order the summary return of the children to the jurisdiction of their habitual residence, he offers the following undertakings to last until the first on notice hearing on 16 May 2017:

Not to use or threaten violence against the mother, nor to instruct or encourage any other person to do so.

Not to contact the mother save through a nominated US Attorney.

Not to attend any property occupied by the mother.

Not to separate the children from their mother save for the purpose of agreed or court ordered contact.

To book and pay for flights for the mother and the children from London to Kona, Hawaii.

To make provision for temporary housing for the mother and the children.

Not to support criminal proceedings against the mother with respect to her abduction of the children from the jurisdiction of the United States of America to the extent that this does not violate or breach any public policy, statute, regulation, court order or other legal duty on the father.

As to the legal position should the children return to the jurisdiction of the United States, the court has the benefit of an expert report from Steven J. Kim, Attorney at Law. His report, dated 2 April 2017 makes the following, points relevant to the outstanding issues in this case:

The term ‘undertaking’ is not in general use in the jurisdiction of Hawaii. However, in the case of Gaudin III, 415 F.£d at 1037 the court made reference to the possibility of a court employing reliance on a party’s undertakings as part of the condition for return of the children to their state of habitual residence.

Greater assurance could perhaps be achieved if the English court were to require an undertaking in the form of a stipulated order to be approved and entered in the Hawaii court as a condition for the return of the children (emphasis added). A stipulated order is a promise or agreement between the parties reduced to an agreed order.

It is beyond Mr Kim’s expertise to offer an opinion as to how a State or Federal criminal court would respond to an undertaking or stipulation of the parties not to support a prosecution of the mother. He however points out that it is not unusual for a prosecutor to compel a reluctant witness to testify (for example, in a prosecution for domestic violence) and that absolute judicial enforcement of an agreement not to support a criminal prosecution would probably be deemed contrary to public policy.

The best way to mitigate the risk of civil punishment of the mother in the Hawaii court would be for the parties to enter into a written stipulation that neither party will seek to impose civil sanctions, including but not limited to awards of attorney’s fees and costs arising out of the mother’s unlawful retention of the children.

The court in Hawaii can grant a mirror order reflecting the final order made in the court in England and Wales.

In his addendum report dated 18 April 2017 Mr Kim opines that the likely timescales involved in achieving stipulated orders of the type that he describes in his substantive report would be one to two weeks. He also reports that a search of the relevant court databases does not reveal any pending criminal cases against the mother.

The law in respect of the defence of harm or intolerability under Art 13(b) was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144. The applicable principles may be summarised as follows:

There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss.

The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.

The risk to the child must be ‘grave’. It is not enough for the risk to be ‘real’. It must have reached such a level of seriousness that it can be characterised as ‘grave’. Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two.

The words ‘physical or psychological harm’ are not qualified but do gain colour from the alternative ‘or otherwise’ placed ‘in an intolerable situation’. ‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’.

Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child’s immediate future because the need for protection may persist.

Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child’s situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled. However, in principle, such anxieties can found the defence under Art 13(b).

Violence per se will not be sufficient to found the defence under Art 13(b). Having regard to the foregoing provisions, the vital consideration is whether the child and the abducting parent will have sufficient protection if they return to the State of the children’s habitual residence. The court has made clear that the approach to be adopted in respect of the harm defence is not one that demands the court engage in a fact-finding exercise to determine the veracity of the matters alleged as ground the defence under Art 13(b). Rather, the court should assume the risk of harm at its highest and then, if it meets the test in Art 13(b), consider whether protective measures sufficient to mitigate harm are identified.

Generally, the risk of the abducting parent being arrested and prosecuted for child abduction is not sufficient by itself to satisfy Art 13(b). In Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433 it was held that neither the possibility of criminal proceedings being brought nor even the possibility of the mother being arrested at the airport on her return was enough to establish a grave risk of harm to the children. In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 it was held that the possibility that the father would change his mind and bring criminal proceedings against the mother if she returned to the United States was not sufficient to establish the exception under Art 13(b).

With respect to the risk of sexual abuse, again the fact that a child will be returned to the jurisdiction in which he or she has been sexually abused by a third party will not generally be sufficient to establish a grave risk of harm under Art 13(b). The central issue is, again, whether the child will be adequately protected on return. In Re S (Abduction: Return to Care) [1999] 1 FLR 843 the court held that the arrangements put in place by the authorities with respect to allegations that the mother’s cohabitant had sexually abused the child were sufficient to protect the child from a grave risk or harm or being placed in an intolerable situation.

The law on the ‘child’s 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] 2 FLR 1074 (and endorsed by the Court of Appeal in Re F (Child’s Objections) [2015] EWCA Civ 1022) and I have regard to the clear guidance given in that case. In summary, the position is as follows:

The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

Whether a child objects is a question of fact. The child’s views have to amount to an objection before Art 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish.

The objections of the child are not determinative of the outcome but rather give rise to a discretion. Once that discretion arises, the discretion is at large. The child’s views are one factor to take into account at the discretion stage.

There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to ‘take account’ of the child’s views, nothing more.

At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. The court must give weight to Convention considerations and at all times bear in mind that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.

Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are authentically the child’s own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to the child’s welfare, as well as the general Convention considerations (Re M [2007] 1 AC 619).

Finally on the subject of the law applicable in this case, it is always useful to recall that, as pointed out by Mostyn J in B v B [2014] EWHC 1804, the objective of the Convention is to ensure that a child who has been removed unilaterally from the country of his or her habitual residence in breach of rights of custody is returned forthwith in order that the courts in that country can decide his or her long term future. It is likewise important to recall that a decision by the court to return a child under the terms of the Convention is, no more and no less, a decision to return the child for a specific purpose and for a limited period of time pending the court of his or her habitual residence deciding the long-term position.

I am satisfied that in July 2016 the mother instigated an entirely premeditated and flagrant abduction of the children from the jurisdiction of the United States. The mother’s conduct was blatant, taking place as it did in the context of ongoing proceedings in Hawaii and in the face of a court order, applied for by the mother, that stipulated precisely the period of time the mother was permitted to retain the children outside the jurisdiction of their habitual residence. Having regard to the evidence that the mother had planned for some time to remove the children, it is difficult to avoid the conclusion that the mother applied to the court in Hawaii for permission to remove the children temporarily to England as part of her plan to abduct the children, thereby using the court to further her unlawful conduct.

Within this context, I am satisfied that the mother’s abduction of the children was not only premeditated, but was undertaken in circumstances where the mother knew her actions were unlawful and proceeded in any event. Thereafter, the mother further compounded her culpability by seeking to hide the children and prevent contact between the children and their father by moving them through a number of different jurisdictions. I am satisfied that in acting in the way she did, the mother was seeking to avoid the properly constituted proceedings in the court in Hawaii and the completion of the assessments ordered by that court. Whilst the mother accepts before this court that her retention of the children was wrongful, the reality is that she has no other choice but to make this concession.

In advancing her defence under Art 13(b) the mother relies on the following matters, placing emphasis on the intolerable situation in which she contends the children will be placed if they are summarily returned to the United States (it will be noted that the mother does not place much emphasis at all on the conduct that she alleges against the father in terms of his alleged punching of each child):

There is a grave risk that the children, and B in particular, will suffer psychological harm if returned to America because living there “holds so many painful memories”, particularly as a result of the abuse B suffered.

The children will be placed in an intolerable situation if the mother is arrested and prosecuted for child abduction in that this will deprive them of their primary carer.

The children will be placed in an intolerable situation by reason of the fact that there is no adequate accommodation for the mother and the children in Hawaii and the mother does not have the financial means to support herself and the children in that jurisdiction.

The children will be placed in an intolerable situation if the father seeks to enforce the sole custody order in his favour given the children’s expressed views regarding a return to their father’s care.

Within this context, Mr Devereux rightly concentrated his submissions on the contention that the protective measures advanced by the father are inadequate to protect the children from a grave risk of harm or otherwise being placed in an intolerable situation, taking the mother’s case at its height. In particular, Mr Devereux submits that the undertakings offered by the father are simply inadequate given what he submits is the “chasm” that exists between the father’s undertakings and the stipulated orders recommended by Mr Kim in his expert report.

Having regard to the principles set out above, there must be a real question in this case of whether the matters relied on by the mother are capable of reaching the threshold of a grave risk of physical or psychological harm or of otherwise placing the child in an intolerable situation having regard to the narrow terms of Art 13(b). In particular, I entertain significant doubts regarding the credibility of the mother’s allegations against the father regarding his conduct towards the children. However, proceeding for present purposes on the basis that the mother’s case, at its highest, does establish a grave risk of physical or psychological harm or of otherwise placing the child in an intolerable situation, I am entirely satisfied that the protective measures offered by the father and available in the jurisdiction of the United States are sufficient to protect the children in that they will prevent that risk becoming manifest upon the children’s return to the jurisdiction of the United States.

As I have already observed, the focus of mother’s case is less on her allegations of physical abuse and more on the psychological impact of returning the children to Hawaii. With respect to the position of B and the sexual abuse she is alleged to have suffered, it is plain on the face of the papers that procedures exist in the jurisdiction of the United States to protect B from the risk of such abuse, the parents having been able to achieve a restraining order against the alleged perpetrator and having access to law enforcement agencies. With respect to the alleged adverse psychological impact of the alleged abuse and any painful memories of other emotional sequelae that B may suffer, and on M of returning to Hawaii, Dr N specifically pursues a psychological evaluation of the children and therapeutic intervention for them as soon as they arrive in Hawaii. I am entirely satisfied that these measures are sufficient to protect B and M psychological harm upon returning to the jurisdiction of the United States.

With respect to the mother’s submission that children will be placed in an intolerable situation if she is arrested and prosecuted for child abduction, in that this will deprive them of their primary carer, I accept that this risk cannot be entirely ruled out in this case given the understandable reticence of the FBI to reveal details of the existence or progress of any federal investigation. Indeed, in almost all cases it will not be possible to exclude entirely the risk that the abducting parent will face arrest and prosecution on return. The authorities make clear that this risk will generally not be sufficient to satisfy the terms of Art 13(b).

Two further points fall to be made in this regard. First, a parent who chooses to abduct a child from one jurisdiction to another must expect to be the subject of arrest and prosecution. That is simply one of the proper consequences of a parent unwisely taking the law into his or her own hands rather than seeking relief through the courts. It sits ill in the mouth of a parent who has abducted a child to complain about the consequent risk of arrest and prosecution. Within this context, there is a principled argument that the court seeking to enforce the return of the child, and thereby maintain fidelity to an international instrument designed to discourage and prevent child abduction, has no business trying to protect the abducting parent from arrest and prosecution upon their return under domestic laws designed to achieve precisely the same end.

Second, and within this context, I am unable to accept Mr Devereux’s submission that the caveats that the father seeks to add to his undertaking not to support criminal proceedings against the mother with respect to her abduction of the children from the jurisdiction of the United States, namely that he will so undertake “to the extent that this does not violate or breach any public policy, statute, regulation, court order or other legal duty on the father” are inappropriate or devalue the undertaking. In my judgment, it is perfectly proper for the father to ensure that his undertaking does not bring him into conflict with the domestic laws of the United States. Once again, there is a principled argument that it would be entirely wrong to expect the innocent left behind parent to place themselves in conflict with the laws of their home country in order to prevent the lawful arrest and prosecution of the culpable abducting parent. In short, it is wrong in principle to expect the left behind parent to assume some of the legal risk created by the abducting parent by giving undertakings that have the potential to, or do come into conflict with the laws of the home state. In the circumstances, I am satisfied that the caveats the father places on his undertaking are both reasonable and necessary.

Within this context, I am entirely satisfied that the undertaking offered by the father with respect to the risk of arrest and prosecution faced by the mother is appropriate in its terms and ambit and offers the maximum protection reasonably available against the risk contended for by the mother.

With respect to the mother’s contention that the children will be placed in an intolerable situation if the father seeks to enforce the sole custody order in his favour given the children’s expressed views regarding a return to their father’s care, I am satisfied that the father’s undertaking not to seek the care of the children pending the first inter partes hearing of the proceedings in the United States is sufficient to protect them from such a risk. Having regard to the arrangements that I consider will need to be made for the children’s return, the undertaking given by the father is required to regulate the position for a little over 24 hours before this matter returns to the court in Hawaii. Further, I am entirely satisfied that the father is a child focused parent who has each of his children’s best interests at the centre of his considerations. These factors, along with the other overarching factors set out in Paragraph 61 below, satisfy me that I am able to rely on the father’s undertakings not to remove the children from their mother’s care pending the hearing before the court in Hawaii on 16 May 2017.

Finally, with respect to the mother’s contention that the children will be placed in an intolerable situation by reason of the fact that there is no adequate accommodation for the mother and the children in Hawaii and the mother does not have the financial means to support herself and the children in that jurisdiction, once again, I am satisfied that the father will honour his undertaking to ensure that the mother and the children have accommodation upon their return to Hawaii for the reasons I have already given. With respect to the mother’s alleged impecuniosity, once again I have regard to the fact that the matter will be before the court in Hawaii a little over 24 hours following the arrival of the mother and the children in Hawaii. Within this context, the mother will be in a position to seek financial relief if merited almost immediately upon her return.

Within the foregoing context, I am not able to accept Mr Devereux’s submission that to ensure the efficacy of the foregoing protective measures it is necessary to go beyond accepting undertakings given by the father and obtain stipulated orders in the court in Hawaii before the children are returned. I am entirely satisfied that this court is able to rely on the undertakings proffered by the father in circumstances where (a) there is no evidence before the court that gives the court reason to doubt the father’s bona fides, (b) the clear and cogent evidence before the court of father’s sensitivity to children’s welfare allows the court to have confidence that he will honour promises designed to ensure the children are protected from any risk of harm, (c) in circumstances where the father is a retired District Attorney the court can be confident that he well understands the significance and gravity of a promise made to the court, (d) despite the mother’s quite remarkable assertion that she has “always complied with Court orders” and that it is the father who “has a record of failing to comply with Court Orders”, there is no cogent evidence before the court of the father breaching orders of the court, (e) as I have already observed, the undertakings given by the father will be required to regulate the position for only a little over twenty four hours before the court in Hawaii considers the matter at an inter partes hearing and (f) the jointly instructed expert has made clear that undertakings given before a court in this jurisdiction could be relied upon in Hawaii. Within this context, I do not accept that this court should defer the return of the children until stipulated orders have been obtained in the court in Hawaii.

In circumstances where I am entirely satisfied that the protective measures offered by the father and available in the jurisdiction of the United States are sufficient, taking the mother’s case at its highest, to protect the children from a grave risk of physical or psychological harm or being otherwise placed them in an intolerable situation, I am not satisfied that Art 13(b) provides in this case a proper basis for refusing to return the children to the jurisdiction of their habitual residence.

Having regard to the evidence before the court, and in particular to the account of the conversations between the children and the Children’s Guardian and the contact notes, and having conducted a robust examination of that evidence, I am satisfied as a matter of fact that the views expressed by each of the children amount to an objection to being returned to the United States. I am further satisfied that each of the children has attained an age and a degree of understanding at which it is appropriate for the court to take account of their views. I make clear that I have given very careful consideration to the objections expressed by B and by M.

That said, the law is clear that the children’s objections are not determinative of the outcome of these proceedings but rather give rise to a discretion, the exercise of which requires the court to decide whether to order the return of the children in the face of their objections. In deciding whether to make a return order, the objections expressed by the children are one factor to be taken into account alongside other welfare considerations having regard to the evidence available before the court. I must also give weight to aims of the 1980 Convention and bear in mind at all times that the Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned, and returned promptly.

Applying these principles, I am entirely satisfied that I must exercise my discretion to order the return of the children to the jurisdiction of their habitual residence notwithstanding their stated objections. My reasons for reaching this decision are as follows:

In my judgment there is evidence before this court, and there was evidence before the Court in Hawaii, that the children’s expressed views have been influenced by their mother. In particular, the observations of Dr N with respect to B, the marked contrast between the quality of the children’s relationship with their father when in Hawaii and the quality of that relationship following their abduction and the otherwise inexplicable change in M’s conduct towards his father in the absence of any incident between the two of them. In the circumstances, I am left with a significant doubt over whether the children’s expressed views are entirely their own rather than those of the abducting parent. This reduces the weight I am able to attach to those views, which in any event are not determinative, when considering whether their objections should prevent an order for summary return.

I am satisfied that there are manifest welfare advantages to the children’s welfare being determined in the jurisdiction of their habitual residence within court proceedings that are already constituted and already heavily engaged in the issue of welfare. There are plain welfare advantages for each child in the professionals who are already engaged to assess the children’s welfare continuing their assessment, and in the work planned and commenced to inform the welfare decisions being completed. Within this context, I am satisfied that each child’s welfare will be promoted by facilitating the continuation of the proceedings already begun in the jurisdiction of the children’s habitual residence.

I am further satisfied that only by returning the children to the jurisdiction of their habitual residence can the court ensure the continuation of each child’s relationship with their father, which outcome is manifestly in each child’s best interests. Having regard to the matters set out in this judgment, I accept the evidence of the Children’s Guardian that given the mind-set the children are now in, and the evidence with respect to their mother’s influence, there must be a grave concern that if they remain in this jurisdiction they would not, during their minority, see their father again. Such an outcome would plainly have an adverse impact on each of the children’s welfare in the short, medium and long term.

I also bear carefully in mind the aim of the 1980 Convention. The need to do so in this case is emphasised by the flagrant nature of the mother’s abduction of the children and her attempt to frustrate the properly constituted proceedings in the jurisdiction of the children’s habitual residence. I have also borne in mind the principle of comity in circumstances where the court seised of the proceedings in the jurisdiction of the children’s habitual residence has already made an order for the return of the children to that jurisdiction.

Within this context, whilst the children’s objections are one consideration for the court, I am satisfied that those objections are heavily outweighed by other welfare considerations that I have outlined above such that I should exercise my discretion to order the summary return of the children to the jurisdiction of the United States of America.

For the reasons that I have given in this judgment, I am satisfied that I must make an order for the summary return of B and M to their jurisdiction of habitual residence forthwith. Whilst I will hear submissions on the practicalities of arranging the return of the children pursuant to that order, it is my intention that the mother and the children will be back in the jurisdiction of Hawaii in time for the court hearing in Hawaii listed on 16 May 2017. Given the need for the mother and the children to have a short period of recuperation prior to the hearing, I am satisfied that the mother and the children will need to depart this jurisdiction by no later than this Sunday, 14 May 2017.

Further, and whilst once again I will hear submissions on the practicalities of arranging the return of the children pursuant to my order, in light of the mother’s blatant abduction of the children in the face of court proceedings, and her subsequent transit through a number of jurisdictions, it will be important to ensure that the transit of the mother and the children back to the jurisdiction of Hawaii (to which jurisdiction there are no direct flights from the United Kingdom) is facilitated in a manner that ensures the children arrive at their destination. Whilst I doubt the practicality of the father’s wish to involve law enforcement officials or other supervisors or escorts, it is plain that the arrangements for return will need to be constructed so as to minimise the risk of further abduction.

Finally, I would say this. Whilst it is not for this court to make a final determination on the issue, for the reasons I have given I am satisfied that there is cogent evidence before the court that the mother has sought to influence each of the children against their father. As I observed during the hearing, the mother should know that any parent who seeks to influence their child against the other parent almost always finds that, eventually, there is a debt to be paid.

This court has the benefit of seeing cases at many different stages of a child’s life. Children with separated parents grow up and, ultimately, come to render their own judgments about the character and conduct of each of their parents. It is my experience that a parent who has sought to undermine their child’s relationship with the other parent does not fare well in that reckoning. Such parents often find that in their attempt to manufacture estrangement between their child and the other parent it is they who, ultimately, become estranged. Beyond this, a parent who seeks to undermine their child’s relationship with the other parent risks causing grave damage to their child’s emotional wellbeing and, ultimately, their child’s mental health. The mother would do well to reflect very carefully on these matters.

That is my judgment.