ROL v HML (Child abduction and immigration problems)

This is not a judgment in the conventional sense, but a brief summary of the position provisionally reached in this case, to serve as an aide memoire at the next hearing.

Mr Mark Jarman, on behalf of the mother, has expressly abandoned the defence that the children were not habitually resident in New York immediately prior to their removal here on or about 22^nd September 2017. That leaves two possible defences under The Hague Convention.

One is a defence under Article13B that a summary return of the children to New York would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable position. The other is a defence specifically in relation to the elder child, who will be thirteen next month, that she objects to a return forthwith pursuant to the Convention.

So far as the latter defence is concerned, I personally had reservations and an open mind when I read the report of Ms. Roddy as to whether the state of mind of the older child went beyond a strong preference and crossed the threshold of amounting to an objection to return.

However, Ms. Roddy gave clear and cogent oral evidence. Towards the end of her evidence, in answer to questions from me, she said very clearly that she, Ms. Roddy, is very aware of the distinction between a preference and an objection, and that she, Ms. Roddy, is quite clear and satisfied that the state of mind of this child does amount to an objection to return.

Ms. Roddy saw and spoke with this particular child for an hour and a half, which is relatively speaking a long time for such an interview. She reports that is a bright and confident girl who clearly had considerable grasp and understanding of the context of, and issues in, this case. It goes without saying that it is ultimately for the judge to decide in any given case whether the child concerned does object to a return; but in this particular case, in the light especially of the oral evidence of Ms. Roddy, I have provisionally concluded that I should decide that this child does object to return forthwith.

Indeed, Ms. Indu Kumar, who appears on behalf of the father, accepted (although without instructions on the point) that it would be difficult for her to maintain a submission that the child does not object to return in the face of that evidence.

If that remains the holding as to objection, then, of course, the door is open to the exercise of the discretion whether or not to order return. On the facts and in the circumstances of this particular case, there is then considerable overlap between the exercise of discretion in relation to the defence based upon objection and the defence based on Article 13B.

It had seemed towards the end of the most cogent submission of Mr Jarman on behalf of the mother this morning, that it would be naïve and unrealistic to order any return because of the financial uncertainty to which the mother and children would be exposed. Without going into it in detail today, Mr Jarman convincingly demonstrated that in order to pay rent, utility bills, general maintenance needs and the school fees of these two children, at least $3,500 per month would be required.

The evidence at that stage was to the effect that the father, who had been made redundant in June, is a student with only limited forms of state support. His written evidence, at paragraph 36 of his statement dated 1^st December 2017, was, and is, extremely vague. Thus, Mr Jarman very cogently argued that although at paragraph 69 of his statement the father offered undertakings to pay certain sums towards the rent and utility bills and by way of general maintenance, there was no credible evidence that he would, in fact, be able to honour those undertakings. In any event, the figures in his undertakings were patently too low.

There was then a somewhat surprising development in that, after taking instructions over the lunch adjournment, Ms. Kumar stated that the father, in fact, has US$15,000 in a savings account. If that sum was to be paid over by the father in advance to the mother into a bank account in her own name, which she alone can draw upon and control, that would obviously have the effect that she would have sufficient funds to pay for flights for herself and the children and other travel costs to New York and to meet the rent and all utility and other bills and to pay for the general maintenance needs of herself and the children for at least three months. The father in any event undertakes that he will pay all the school fees of the two children, which it would be within his means to do on the basis of his disclosed income, albeit that it is derived from forms of American State benefits. Frankly, Mr Jarman felt unable to maintain his argument based upon financial uncertainty, provided that a sum of £15,000 was indeed produced in the way I have described.

At this point, however, another area of difficulty in this case arises. The mother is a British citizen whose origins of birth are from Somalia. She was previously living in America on a spousal visa, but as I understand it, that is conditional upon the two spouses in fact living together, whereas patently they have now separated. It is said, and does seem to be the case, that her application for an American Green Card had already been successful but that Green Card has never been received. So as things stand today, it is extremely uncertain whether the mother herself would be permitted to enter America and if so, how long she would be permitted to stay.

It would in this case be indeed intolerable and gravely damaging for each of these children if a situation arose in which they (being American citizens) were admitted into America and their mother, with whom they have always lived, was not.

Frankly, before there can be any question of an order for summary return of these children to America and before, indeed, the father can be reasonably expected to hand over $15,000 to the mother, it is essential, first, to establish that she does have in her hands, or on her passport, a copper-bottomed permission to enter and remain for an appreciable period of time in America.

This apparently will require her personal attendance at the American Embassy in London. It is not known how long the process may take nor, indeed, what the final outcome will be. So, it seems to me that I am constrained in any event to adjourn this hearing part-heard in order to enable her, in good faith, as she has said she will do, to try to resolve her immigrant status. There can be no possibility of an order for return unless and until that is satisfactory resolved.

I do however record at this stage that it is my provisional view, as the evidence stands today, that if the mother can lawfully enter America and lawfully remain there, and come and go as she pleases (because she will wish to return to England to see her family here), for an appreciable period of time, and provided the father does indeed hand over the $15,000 to the mother in advance, then I should exercise my discretion to order return notwithstanding the objection of the elder child.

In brief, my provisional reasons are that even when a child objects to return, the court needs to take account of the antecedent wrongful removal of the children and the objects of the Convention which are, when possible, consistent with the welfare of the children concerned, to ensure the prompt return of abducted children to the state of habitual residence so that proper decision-making as to their future can be made in that state, either by agreement between the parents or, if necessary, by court adjudication.

Whilst I have sincerely accepted the evidence of Ms. Roddy that the elder child does object to a return forthwith to America, I do not consider that her objection is at the hard or extreme end of the spectrum. It is, rather, a relatively borderline objection and I recall one answer of Ms. Roddy that, "She would feel a little resentful of her father if she had to return to the United States and that will have to be worked through". She herself has expressly contemplated returning to America from time to time for holiday periods there with her father and paternal family. It therefore does not seem to me, on the facts and in the circumstances of this case, that the court would be being particularly defiant of an entrenched objection if it were to order return.

It is also necessary to consider the position of the other child, only aged three. She has spent most of her life living with her father and it is, in fact, a particularly damaging age for a child to lose regular direct contact with his or her father. In the case of the younger child, it does seem to me a clear case for an order for return. There is tension between the position of the younger child and the objection of the elder child, but for the reasons I have provisionally indicated, I will provisionally in this case order return of both children.

The other matter to which I must now make reference is proceedings in America. On 25^th September 2017, immediately after the wrongful removal, the father, with great promptitude, issued a set of proceedings before the Family Court of the State of New York. Within his petition, which as I understand it he drafted in person, he has asked for custody of both children. Thus far, there has been no hearing before the American court and no order made by that court but a "first appearance" has been fixed for 5^th January 2018.

As this mother will not now be back in America by that date, it is of the utmost importance, if there is to be an order from this court for a return of both children to America, that there is not, meantime, any order made in America which might adversely impact upon the mother or the children upon return.

Further, it will be very important that within a reasonably short period of any return by the mother and the children (but not so short that the mother does not have time properly to settle herself and the children in before attending to the litigation) there is an opportunity for both these parents to appear before that court to enable it to make appropriate orders both as to the short-term, including such matters as maintenance once the $15,000 has run out, and as to the longer-term.

It would therefore be enormously helpful to the case of the father in these proceedings if that hearing on 5^th January was vacated without any orders being made, and another date fixed with sufficient time allowed to enable both these parents (who may both act in person) to appear before that court and sort out all the issues between them after the return of the mother and children to America if, in the end, I so order it.

For those reasons, the somewhat unexpected outcome of today is that I adjourn this matter part-heard to Tuesday, 16^th January 2018. I think both sides are very clear both from discussions in the court room and from these words what they need to do between now and then.