W v W [2010] EWHC 332 (Fam)

Application by father for return of three children to the Republic of Ireland under the Hague Convention. Application failed.

The mother was English and the father Irish and they married in October 2007 after cohabiting for several years. The children were 8, 6 and 3 years old. Until June 2009 the family lived in Ireland and it was common ground that they were habitually resident there. On June 19 the mother left for England with the children and it was accepted that they had been wrongfully removed. He followed them to England, living with his mother in law and finally moving back in with the mother and children. That reconciliation did not last with further accusations of drink problems and violence, so the father returned to Ireland and, upon finding out of his rights under the Convention, issued this application.

The mother sought to defend the application primarily on the grounds of acquiescence, that the children would suffer harm and that the eldest child objected. Black J, reviewing the evidence, rejected the first two grounds; the first as the mother had not established that the father had acquiesced and the second because such a defence provides a high hurdle to surmount and there were protective measures available to the mother and children in Ireland. On the third ground Black J considered the Lords’ judgment in Re D which indicated to her that she could take the children's views into account event though the eldest child was only eight years old. She also reviewed their evidence and the methodology of the CAFCASS officer who spoke to the children, who clearly felt they were not simply expressing a preference to remain in England but were fearful and anxious of any return. Accordingly she decides that she can exercise her discretion not to order the return of the older children and by association the youngest child as well, who had not been of an age to voice her views but who would be exposed to possible psychological harm if split from the sibling group.


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Neutral Citation Number: [2010] EWHC 332 (Fam)

Case No: FD09PO2690
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4/03/2010

Before :

THE HONOURABLE MRS JUSTICE BLACK
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Between :

W (Applicant)

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W (Respondent)

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Mr Edward Devereux (instructed by Bindmans and Company ) for the Applicant
Ms Annmarie Harris (instructed by Slater Bradley and Company) for the Respondent

Hearing dates: 12th February 2010
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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THE HONOURABLE MRS JUSTICE BLACK
This judgment is being handed down in private on 4th March 2010. It consists of 14 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Black J: 
1. This is an application under the Hague Convention for the return of 3 children to Southern Ireland.

2. The children are D (8 years old), G (6 years old) and C (3 years old).

3. The plaintiff is the children’s father (F), who is Irish.

4. The application is opposed by the children’s mother (M), who was born in England. Her opposition is put on a number of bases: consent/acquiescence, Article 13(b), and the older two children’s objections.

5. The parties cohabited for some years, then married in October 2007 after the children had been born.

6. Until the middle of last year, the family was based in Southern Ireland. There had been earlier separations between the parents but the separation that is of relevance to these proceedings took place on 19 June 2009. On that day, M left Ireland with the children and came to England without asking F for his consent or even telling him of her intentions; he simply came home from work to find the family gone. There is no dispute that the children were habitually resident in Southern Ireland at that point and that the removal was wrongful.

7. M says that her departure was provoked by F’s behaviour towards her over a long period of time. Her case is that he was violent and abusive towards her, at times in front of the children, and that he drank excessively and was controlling and possessive.

8. F denies these allegations in their entirety. He says in his statement that “apart from the odd argument our relationship was normal” but that included, on his case, M having a drink problem and behaving badly in a number of ways. On his case, he was the responsible one in the relationship. He says that M was not entirely dependable as a mother, for instance staying in bed after a night out drinking and failing to take the children to school. He says she was violent to him. He asserts that he gave her his wages and she was supposed to deal with the household bills but she failed to do so and rent arrears accrued. He says he thinks she left Ireland to escape her debts rather than for any reason to do with him.

9. M says that after her departure, F contacted her and made threats to kill her; he denies that. She lived for a period with her family and was then re-housed by the local authority.

10. F arrived in this country 10 days after M left Ireland, once he had obtained a passport enabling him to travel. He stayed with M’s mother and her partner from then until September 2009. He got a job with M’s sister’s partner, he says so that he could provide money to M for the children because she had no money. His hope was that the family could be saved and M encouraged that hope by telling him that she needed time to think.

11. M says that there continued to be problems with F’s behaviour during this period. He still drank heavily and did not attend work on time. She says that he lost his job because of this but F says he was not drinking and the job simply came to an end at the end of a particular contract. M says there continued to be frequent arguments; F says there were not. The relationship had not, at this point, been resumed.

12. In September 2009, M agreed to give the relationship another chance and agreed that F should move in with her and the children. She says that she made it clear to F that this was a trial and not a permanent reconciliation. I think, judging from paragraph 19 of F’s statement, that he accepts this.

13. M describes further problems after the resumption of cohabitation, in particular an incident when she attended a funeral and F looked after the children. She says that, having found out that F had been drinking, she returned immediately from the funeral but F refused to let her in so she had to spend the night with her sister. When she returned next day, she told F that she was taking the children and wanted him to leave. He tried to prevent her leaving by force but then left himself when she pretended to telephone the police.

14. F denies he had been drinking on that occasion. He says they had arranged that M would pick up the older children from school following the funeral but she did not confirm that she was going to do that and he had to take the youngest, who was ill, out with him and pick up the older two himself. Eventually, he got a text message from M to say she was staying with her sister. He says that he found out later that she had gone to a nightclub and stayed out all night. He says she did not return home until 5 p.m. the next day. On his case, it was M who got very aggressive over taking the children to her sister’s. He says he thought this was an unwise plan and he stood in the gate. M was violent, ramming the buggy into his ankle and kicking him. He did not realise that it was a pretence when she rang the police and, not wanting to waste police time or to have a scene develop, he left and went to stay with an uncle.

15. This incident seems to have been the end of the attempted reconciliation. M told F she wanted to stay in England and F accepted that the relationship was over. He returned to Ireland on or after 16 November 2009.

16. F says he had never accepted that the children’s home would be permanently in London. He says he always felt that what M had done in removing the children from Ireland was wrong but he did not know his Hague Convention rights until after the reconciliation attempt ended. It can be seen from the documentation that he was in contact with the Central Authority, with a view to making this application, by 26 November 2009 (the date on which he signed a Central Authority authorisation form).

17. Although her defence refers to both consent and acquiescence, M’s argument is, in fact, that F acquiesced to the children being in this country.

18. The parties are not in dispute as to the law to be applied in relation to this issue, or indeed any other, with one possible exception to do with the age at which a child may be sufficiently old and mature for their views to be taken into account.

19.  In re H (Minors)(Abduction: Acquiescence) [1998] AC 72 sets out the proper approach with regard to acquiescence. Whether someone has acquiesced depends on his actual state of mind. The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. There is one exception to the normal rule and that is “[w]here the words and actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return”, in which case, justice requires the wronged parent to be held to have acquiesced. M’s case is not founded upon this exceptional type of acquiescence but upon the normal subjective form of acquiescence. 

20. In seeking to discharge the burden of proof that is upon her in this respect, M relies on a number of matters, commencing from the time F arrived in this country. The backdrop is that she says that she told F very clearly, on his arrival, that she wanted to stay in London indefinitely and start a new life here and reiterated that repeatedly. Her case is that F agreed to her and the children staying here but wanted to reconcile with her and decided to stay in London himself. F says he was hoping all the time that they would sort things out and go back to Ireland and did not accept that the relationship was over until M told him after the incident on the day following the funeral that she had no intention of returning to Ireland. He never consented or acquiesced in the children staying here because at no point up until then did he “think it was a permanent possibility”. 

21. M relies on the fact that F, who made several trips back to Ireland between June and mid November, brought a number of documents back for her that she needed to get the children into the Catholic school, to register them with the doctor and to get housing. He also brought back clothing for M and the children, as well as C’s passport and M’s passport. M says that she was fully open with F about arranging new schools for the children and he did not say that he was not happy with this or tell her that he wanted them to make plans to return to Ireland. It is M’s case that F facilitated the living arrangements in England in this way because he was agreeing to her and the children staying here on a permanent basis.

22. F does not agree that he accepted the move. He says that he was motivated by considerations of the children’s comfort in bringing clothes for them and collecting medical information from Ireland so that C could have treatment here for his skin condition. He denies bringing C’s passport because he says M already had it. He says that he did not know the children were being enrolled in schools in London but when he did find out that that had happened, he decided that things were not going to be resolved overnight and that it was best to let them continue their education.

23. As will be apparent from what I have already said in this judgment about the parties’ respective cases, there is very little common ground between them as to the facts. I declined to hear oral evidence from the parties or M’s mother to assist in resolving the conflicts in the evidence for a number of reasons, not least that Hague proceedings are summary proceedings which need to be heard and determined without delay and in which oral evidence is not the norm, and that it seemed to me that in this case it was likely to require a significant amount of time (considerably more than could have been accommodated in the one day estimated as the length of the hearing and provided by listing) for the witnesses to have been examined in such a way as would have been likely to enlighten me reliably as to the true facts.

24. Indicators in the papers as to where the truth lies are rather thin on the ground, there being a relative absence of independent documentation or evidence that might have enabled me to see whose account was to be preferred. It would have been very helpful, for example, if either side had obtained corroborative information about matters such as, say, the circumstances of the surrender of the tenancy of the family home in Ireland and whether serious rent arrears had indeed accrued as F said. A document that would be likely to have been of particular assistance is a copy of the letter which it is common ground was written by the priest and brought back from Ireland by F. M says, through the statement of her mother that this was required to get the children into the Catholic school. The mother argues in her statement that F would not have returned to Ireland to get the documents required to enrol the children in school in London, including that letter from the priest, if he did not consent to them remaining here indefinitely. F replies to this paragraph in his statement denying that he fetched documents so that the children could be enrolled in school. He asserts that M needed “the certificate and the letters from the priest so that D could do football at school on Saturdays”. Nobody could explain to me credibly how a letter from the priest could possibly be necessary for this purpose. Counsel for F, on instructions, said that D’s baptism certificate was necessary in order to prove his age so that he could get into a particular level of football team but it seemed to me unlikely that there was not an easier means than this of establishing D’s age. I found F’s account of why the certificate and letter from the priest were needed inherently incredible. In contrast, it is very likely, in my view, that the letter from the priest was needed to get the children into a Catholic school, as M says. I thought it probable that F advanced his implausible explanation because he did not wish it to seem that he had facilitated the enrolment of the children in school here, for fear that it would look as if he had been accepting that they were going to stay here. That he was prepared to do this damages his credibility.

25. It is further undermined by the fact that when the children saw the CAFCASS officer, they gave an account of violence by F towards M which the CAFCASS officer did not think was the product of coaching or influence by M and which she found believable. The children’s account essentially fitted in with what M had described rather than with F’s version of events.

26. I note also, in considering the question of credibility, that F says in his statement that when he speaks to the children on the telephone they tell him they are miserable and miss their friends in Ireland. This is in marked contrast with the account they gave to the CAFCASS officer. It is possible, of course, that the children say one thing to their father and said another to the CAFCASS officer, but there was considerable emotion attached to what they told her and I am left hesitant as to the truth of F’s evidence as to what the children say to him about their feelings. 

27. The tenancy of the family home in Ireland has been surrendered and there is no dispute that F was responsible for this; he also sold some furniture from the home and brought the money back to London. M says he would not have acted in this way if he did not accept that she and the children were not returning to live in Ireland. F’s case is, I think, that he had no real option about the Irish house. He says that he had to return to Ireland to deal with the property because the rent was behind and the council were going to take the house back. He arranged a house swap with his sister who paid off the arrears as a favour. The sister’s house is in town and has three bedrooms and no garden whereas the family house has four bedrooms and a garden and parking. F says he did not know M had applied for housing in London until the swap had already been arranged. M asked him for money to buy furniture and beds for the children for the property she was obtaining. He did not have any money so he sold some of the furniture from the Irish house in order to provide money for M to buy the children beds. He did this, he says, because at the time, M and the children were living with M’s sister in cramped conditions in a two bedroomed flat with her two children and her dog. Although he still wanted the family to come home and did not think the move to London would be permanent, and he consistently said that the children’s home was in Ireland and they should come back, he thought it would be better for the children if they were living somewhere more comfortable.

28. M also relies on F’s employment in London in establishing acquiescence; F says he got a job because he wanted to provide for the children whilst he was in London.

29. In determining whether M has established that F acquiesced in the children being here, I must take into account not only the assistance that F gave towards the children being comfortable and settled here and the steps that he took in relation to employment and with regard to the family home in Ireland but also the situation as it was between the parties during the period from June to November. It is clear from the evidence of both of them that F was keen, throughout the whole of the period, for there to be a reconciliation. M obviously did not wholly rule it out as ultimately, in September, the parties did try to get back together. It seems to me probable that it was only after this period of attempted reconciliation ended after the funeral incident that F accepted that the relationship was over and realised that M was not going to be persuaded to come back to Ireland. Up to that point, if he agreed to the children staying here at all, it was only on the conditional basis that he too would be part of the family. Indeed, I am not necessarily persuaded that he had even reached that degree of acceptance of the family’s residence in England, given that he had retained a three bedroomed house in Ireland. I reach this conclusion not so much by accepting what F himself says about his state of mind but by evaluating what was actually happening between the parties and what he did. It is noteworthy that within a very short time after the final separation, he had sought advice from a solicitor and brought these proceedings despite the fact that, as I accept, he did not know of the Hague Convention until after that separation. I am not persuaded that this was, as M says, simply an act of revenge rather than the culmination of F’s consistent unwillingness for the children to remain in this country.  His actions in facilitating the arrangements for them here during the period from June to November, even if they did extend, as M says and as may well be the case, to knowingly facilitating her to obtain accommodation and get the children into schools, are not only explicable in terms of acquiescence. They are equally explicable, it seems to me, on the basis that F puts forward, that is to say that he did not think the family situation would be concluded speedily and wanted the children to be comfortable meanwhile. As to the evidence M’s mother gives about his conversation with her about contact, just before he finally returned to Ireland in November, I do not consider that this establishes that over the preceding months F had acquiesced in the wrongful retention of the children away from Ireland. If the conversation did indeed take place, F may well not have known of his rights under the Hague Convention at that point and it may, in any event, only reflect a wish to ensure that he had contact with his children in the near future immediately following his return to Ireland rather than indicating that he had agreed at any stage to their remaining in England. 

30. Accordingly, in my judgment, M has not discharged the burden of establishing that F acquiesced in the wrongful retention of the children. 

31. I turn to M’s argument that the case comes within Article 13(b). It is well established that there must be “clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence.” M relies upon F’s violent and abusive and otherwise undesirable behaviour and the effect that this has had and will have upon the children. In this regard, she invites attention to the evidence of the CAFCASS officer as to what the children said to her in interview and their emotions. It is submitted that there is a grave risk that D and G will suffer psychological harm if required to return to Eire against their wishes. Although the position of C was not dealt with specifically, and he is not old enough to share the views of the older children about a return to Ireland, no doubt it is M’s case that there is a grave risk that he would be harmed or placed in an intolerable position if he were to be returned without his brother and sister.

32. Mr Devereux for F submits that the evidence in this case does not surmount the high hurdle that must be surmounted for a successful Article 13(b) defence. He also submits that F has offered undertakings of the type which are commonplace in cases such as this and which are sufficient to deal with the matter. In my view, the undertakings are a material factor. Also material are the protective measures that would be available to assist M and the children through the Irish courts and social services. There is every reason to have confidence in the ability of the Irish system to ensure the welfare of a mother and children in the position of this mother and children. I do not discount the question of the distress that will be caused to the older children if they are returned to Ireland against their wishes but, in my view, this does not give rise in this case to an Article 13(b) defence. The distress of the older children is, however, extremely material when considering the whole question of the children’s objections and I will also need to turn, in that context, to the question of whether there is an Article 13(b) defence in relation to C.

33. Article 13 says:

“The judicial ….authority may also refuse to order the return of the child if it finds 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 its views.”

34. This part of Article 13 is quite separate from Article 13(b) and the fact that I have rejected M’s Article 13(b) defence does not dictate the outcome of her argument in relation to the children’s objections.

35. The Convention does not stipulate an age below which a child cannot have attained an age and degree of maturity at which it is appropriate to take account of its views and nor do the authorities. Mr Devereux sought to persuade me that these children are too young for their views to be considered. He invited my attention to Re R (Abduction: Hague and European Conventions) [1997] 1 FLR 663 in which Hale J (as she then was), asking herself whether the child (A) with whom she was concerned, who was 10 ½, had reached an appropriate age and degree of maturity, said:

“In the case of Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 the Court of Appeal rejected the suggestion that there was a halfway house: either the child was old and mature enough to have her views taken into account or she was not. A is 10 ½. This is an age which one would normally consider on the borderline of whether views should be taken into account, but chronological age is not the only guide. In the case of Re S (above) the Court of Appeal took account of the objections of a child of 9. The evidence here is that A is an intelligent child. Her present school considers that she is grammar school material. The social worker considered that she was also a mature child. She had become so because of her experience and awareness of adult issues, but she was not inappropriately adult.” [I have emphasised the passage upon which Mr Devereux relies.]

A was found to be sufficiently old and mature for her views to be taken into account.

36. I invited Mr Devereux to address me on the impact of Re D (Abduction: Rights of Custody) [2006] UKHL 51 [2007] 1 AC 619 in which Baroness Hale, in the House of Lords, said:

“57. There is evidence, both from the CAFCASS officer who interviewed him after the Court of Appeal refused him leave to intervene, and from the solicitor who represents him, that A is adamantly opposed to returning to Romania. Yet until the case reached this House, no defence based on the child’s objections was raised. This is not surprising. A was only 4 ½ when these proceedings were begun. At that age few courts would accept that he has ‘attained an age and degree of maturity at which it is appropriate to take account of its views’. But he is now more than 8 years old and he was more than 7 ½ when these proceedings were heard by the trial judge. As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants. Especially in Hague Convention cases, the relevance of the child’s views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.”

37. This passage seemed to me to indicate that Baroness Hale’s views on where the borderline fell in relation to whether a child was of an age and degree of maturity at which it is appropriate to take account of its views may have evolved. Mr Devereux did not accept that and submitted that the views expressed in paragraph 57 and the paragraphs which follow it are confined to the issues that arose in that case, which did not include a defence based on the child’s objections but concerned rights of custody. In his submission, it was important to recognise that it was in this context that the court dealt with the need for children to be heard far more frequently in Hague Convention cases than had been the practice hitherto, in some cases with full scale legal representation. I do not accept Mr Devereux’s argument about this. Baroness Hale used the precise words of the child’s objections defence and, in my judgment, her comments about children’s views are applicable more widely than in relation to the issues at the centre of Re D and, in particular, are relevant when considering the child’s objection defence. There is no absolute threshold age below which a child cannot be sufficiently mature for the purposes of the child’s objections defence, nor are there even any presumptions although, as a matter of common sense, one will be able to say, for example, that an infant will not be old enough and a normal 15 year old is likely to be. In any given case, one can only determine whether a child has the requisite age and degree of maturity by looking at the attributes of the particular child, the circumstances in which he finds himself, and the nature of the objections.   

38. As the authorities remind us (see, for example, Re T (Abduction: Child’s Objections to Return [2000] 2 FLR 192), in evaluating the presentation of a child in the context of a child’s objections defence, it will usually be necessary for the judge to find out, amongst other things, whether the child objects to being returned to the country of habitual residence as opposed to simply to the care of the other parent and why he or she objects. In Re T, Ward LJ provided some helpful guidance as to factors that need to be borne in mind, amongst others, in determining whether it is appropriate to take a child’s views into account and Mr Devereux particularly invites my attention to them. They are to be found at p 204 and are as follows:

“(a) What is the child’s own perspective of what is in her interests, short, medium and long term? Self-perception is important because it is her views which have to be judged appropriate.

(b) To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded?

(c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?

(d) To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parent? ”

39. The children have been seen by a CAFCASS officer, Ms B, pursuant to an order made by McFarlane J on 11 December 2009. He required that they be interviewed to “ascertain their objections, if any, to a return to Eire”.

40. Ms B saw the children on 21 January 2010. C was not interviewed in any formal sense as he is too young for that. The older children were seen together. Mr Devereux criticises the CAFCASS officer for this, submitting that they should have been seen separately. That is, of course, desirable where it can be achieved but children do not always comply with what is desirable. Ms B told me that she did not want to force them. She is an experienced CAFCASS officer who has done a significant number of reports of this type. She did not know the exact number but it was more than 10 and she has been qualified for over 25 years and in this post for over 4 years. Her evidence made clear that she was alive to the dangers of collusion and influence when interviewing the children together. She said that if she had seen worrying signs she would have interviewed them separately but, in her view, that was not necessary. I was impressed by Ms B’s evidence generally and I accept her view on this particular matter. I do not accept Mr Devereux’s submission that her report was an inadequate piece of work.

41. The children volunteered information to Ms B without needing any encouragement or persuasion. She formed the view that their maturity was commensurate with their ages. It was suggested that she should have contacted their schools in England and/or Ireland in order to explore their maturity further but, whilst she has done that where necessary and does not disagree that school information can be helpful, she did not consider it necessary to make further enquiries here. In evaluating the way in which Ms B went about her task, I must bear in mind, of course, the constraints that are inevitably imposed by the rigorous timetable for Hague cases. The summary nature of the Hague process must necessarily be reflected in the depth of the investigation that can be expected of a CAFCASS officer fulfilling a brief such as McFarlane J’s brief to Ms B. Ms B explained her reasons for her view as to the level of maturity of the children and I found them cogent.

42. The children said nothing positive about F. They were critical of him in various ways and said they did not love him. They told the CAFCASS officer that they were scared of him and that he fought with M and physically chastised them, particularly when he was under the influence of alcohol. They said the police often came to the house to stop F fighting and arguing with M. In this regard, I note that there is a report produced by F from the Garda Station in the family’s home town which says that

“no reports of Domestic Violence Incidents have been made to the Garda Siochana in ….. by [M] or [F]. There is no record of [M] having attended at ….. Garda Station in May, 2009.”

I thought that maybe this would be put to Ms B as evidence that the children were not telling the truth about what happened but it was not and neither was anything much made of this document during the hearing. It is difficult to know what to make of it in these circumstances, and although I have borne its existence in mind, I am also conscious that there can be many explanations for a particular police station not having a record of particular events.   

43. Ms B considered that the children were very clear about what they had seen and witnessed and how it made them feel and she did not get any sense that they had been coached or that their account had been influenced by M. Ms B remarked on the way their words flowed as they told their own story, telling her how they felt.  She particularly noted, for example, G’s unusual description of F vomiting blood and calling her to look which G had found really disturbing, and also the children’s description of the friend of F’s who was angry and put a brick through the window at the house. The CAFCASS officer felt that the children knew what they liked and did not like, what made them happy and sad, what was wrong and what was right and what was comfortable.

44. The children spoke of their school here as being better with spacious playgrounds, and they loved their new home here. However, the CAFCASS officer did not think that their views were based on issues of that sort so much as what they had experienced of family life in Ireland and with F.

45. Ms B concludes her short report as follows:

“Children’s objections
16. The children described a home environment that was characterised by violence which caused them to feel emotionally unstable and unhappy. They are very protective of the mother whom they said tried to keep them safe from the father but in turn suffered in her attempts because they said the father would hit her.

17. D was fidgety and anxious when he spoke about the prospects of a return to Ireland. G was tearful. From my discussion with them they categorically do not want to return to Ireland. However, if they were required to do so they reluctantly felt it should be to an undisclosed place in Ireland, so the father could never find them.

18. The expressed views of D’s and G’s wishes and emotional feelings were age appropriate and their maturity was in line with their developmental ages.

Conclusion
19. In interview I felt the strength of D and G’s emotions and convictions in respect of their view of their father, how they experienced him and why they want to stay in England or at least as far away from the father as possible.”

46. Mr Devereux made a number of submissions about Ms B’s methodology. She had not seen F’s statement when she saw the children, only the evidence from M’s side. He submitted that that would have led to a fundamental lack of balance in her approach. The CAFCASS officer did not accept that. She pointed out that her remit was to find out the wishes and feelings of the children and assess their maturity and not to get involved in what has been said by their parents. I accept that sometimes it is necessary, in fulfilling the court’s remit in a case like this, for the officer to probe gently with the child some of the matters that are contained in the statements. In this case, the children volunteered information in a way which seemed to the officer entirely spontaneous and uncoached. I accept that, even if she had had F’s statement with his denials of M’s allegations and his account of affairs, it would have been a valid exercise of her judgment not to explore such matters with the children. She was, of course, aware of F’s position by the time she gave evidence and, although she did not see the children again in the light of it, she was able herself to take account of it in the evidence she gave to the court about what they said and her assessment of their wishes and feelings.

47. The issue of whether the children were objecting at all or just expressing a preference was explored with Ms B who gave clear evidence, which I accept, that they were objecting and were doing so because, amongst other things, they are fearful and anxious. It was put to her that their objection was not to a return to Ireland because they were unable to distinguish that from a return to F. Certainly, the officer said in paragraph 9 that the children had difficulty in distinguishing between the two concepts because for them it simply meant that either way they would be in close proximity to their father. However, she was of the view, for good reason in my judgment, that they could actually distinguish between Ireland and living with F because later, when she presented to them the possibility that the court might say, despite their wishes, that they should return to Ireland, they did distinguish because they said that, in that case, it would have to be a return to a secret venue. She stressed in her evidence that she had a strong sense of them not wanting to return and she remarked upon their emotional response when she put the unpalatable possibility of such a return to them. Being in England gives them a sense of distance and a sense of being safe from F, of whom they are, in Ms B’s view, really fearful.

48. Mr Devereux submits that it is significant that Ms B only looked at the children’s views of the immediate future and did not explore with them their medium and longer term interests. It would have been difficult to do that given the issues in the case and the almost visceral reaction that the children seemed to have in relation to F and Ireland. It seems to me that these children did display a considerable degree of maturity and understanding, including seeing the rather wider picture, when they fielded the officer’s question about how they would feel if the court returned them to Ireland willy nilly. They applied their minds to this and came up with a solution which may or may not be a workable one but is in marked contrast to less mature ways in which they might have reacted, for example crying uncontrollably or having a tantrum.

49. I find that the children do indeed object to returning to Ireland. I accept the evidence of the CAFCASS officer that these objections appear to be based on their own experiences of family life and their fear of their father. I accept that there is nothing to suggest that they are the product of influence or pressure by M. I do not consider that, visceral as they are, these views are likely to be significantly allayed by such protective measures as the Irish system can take. In all the circumstances, in my judgment, the children object to being returned to Ireland, and have attained an age and degree of maturity at which it is appropriate to take account of their views. I see no reason to treat G differently in this regard from D, despite her younger age, in view of the way she presented during the CAFCASS interview. The basis of the objections is fear of F and the style of family life in Ireland. Those are relatively simple matters which a child, even of G’s age, knowingly experiences and upon which she may be able, without difficulty, to base a firm view as I think G has done. 

50. I should add that D’s reaction to the visit on 4 December 2009 of the police, pursuant to a Tipstaff order of this court, to M’s mother’s house where he was staying overnight may also be taken as indicative of the strength of his feelings about a return to Ireland. The morning after the police attended, he was very upset. He told M’s mother that he wants to be in England and appeared to be very sad. Later that day he said to her that he hated Ireland and that he got a fright when the police came into the house. He has subsequently spoken to her on several occasions about his wish to stay in England.

51. My conclusion that the older children object to a return and have reached an age and degree of maturity at which it is appropriate to take account of their views only opens the door to a discretion whether to return those two children or not. The proper approach to the exercise of this discretion is considered in Re M and another (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288. There is no test of exceptionality in relation to the discretion; it is at large. The court is entitled to take into account the various aspects of Convention policy (swift return of children, comity etc), alongside the circumstances which gave the court discretion in the first place (here the children’s objections) and wider considerations of the child’s rights and welfare. The sort of matters that are relevant in relation to the child’s objections are the nature and strength of them, the extent to which they are authentically the child’s own, and the extent to which they coincide with other welfare considerations. The older the child, the greater the weight that its objections are likely to carry.

52. I have already set out my conclusions about those considerations that relate specifically to the children’s objections. I am proceeding on the basis that they are rooted in fear and are strong objections which it may be difficult to dispel, particularly when one bears in mind that the children continue to have these feelings about their father notwithstanding that he is now living back in Ireland and has been since mid November. Of course, they do not determine what should happen. It is very important that courts do not undermine the Convention by too lightly exercising their discretion not to return a child who has been wrongfully abducted and I hope I have guarded against that danger by giving Convention policy full weight. In addition, I have taken fully into account the protective measures that should be available to the family were they to return to Ireland. Also into the balancing exercise must come considerations about the children’s welfare. They have settled into English schools and have a secure and established home here albeit that it is important to keep in mind that they are children who had spent the entirety of their childhood in Ireland until the middle of last year. Although I have found that F has not acquiesced in the removal/retention of the children, he was aware from his arrival in this country of the ways in which the family was settling into this environment and did not try to disrupt that, indeed assisted with it in some ways. He chose to pursue the possibility of a reconciliation and the months that have therefore elapsed since the removal have diminished the element of “hot pursuit” in this case. Clearly, I must bear in mind that an application may be made by him to the Irish courts for an order for the children’s return; a refusal to order a summary return now does not obviate the possibility that the children may be returned later. 

53. Weighing up all the material matters, I have concluded that I should exercise my discretion not to order the return of the older two children under the Hague Convention. I return, in those circumstances, to consider C’s position and Article 13(b). Splitting siblings can result in an intolerable position for one or more of them/give rise to a grave risk of psychological harm although whether it will will obviously depend on the facts of the case; Re T (above) is an example of a case where it did, although that is by no means always so.

54.  In my judgment, if I were to order C’s return without his two older siblings there would be a grave risk that his return would expose him to harm (particularly psychological harm) or otherwise place him in an intolerable position. These three children have always lived together, and it is not unreasonable to suppose that although C cannot describe his experiences and emotions as his older siblings can, they have been similar. As a sibling group, they have experienced a turbulent and, according to the older two, frightening environment.  It would inevitably have a significant detrimental impact upon him if he were to have to return to Ireland now without them. Furthermore, it might not only be the separation from his siblings that C would have to endure. There would be no guarantee that his mother could return herself, given her obligations in relation to the other two children.

55. Accordingly, F’s application for the summary return of these three children fails.

56. This judgment will be circulated in draft. I would hope that any consequential directions can be agreed between the parties. If so, a draft order can be submitted for my approval without any attendance when I hand down the judgment. If there is disagreement, my clerk should be contacted with a view to fixing an appropriate time when counsel can attend for the hand down and to deal with the order.