The Italian father and the Latvian mother married in Italy in 2001, residing mainly in the father’s parents’ home in a Italy although they travelled periodically to Latvia where their daughter was born in 2005. When by 2010 the marriage was in difficulties, the mother took the daughter from the family home to northern Italy some 450 kilometres away. The father reported the mother to the police for child abduction. In July 2014 the parties were granted a decree of separation, and there was a shared care order giving the mother custody from September to June and the father custody during the long summer holiday with arrangements for weekend access to the other parent. Later that year the mother was sentenced to one year’s imprisonment for the child’s removal. She appealed against the conviction and the sentence was not activated pending the appeal. In 2016 the mother removed the child to England, enrolling her daughter in school and obtaining employment. The father applied under the Hague Convention on the Civil Aspects of International Child Abduction (1980), as given effect by the Child Abduction and Custody Act 1985, for the child’s return. At the beginning of 2017 the Italian appellate court dismissed the mother’s appeal against her conviction. The child was interviewed by a CAFCASS officer in 2017 and the mother stated that she was well settled in school and had friends and family in England whose company she enjoyed. Her case was that returning her daughter to Italy would expose her to physical or psychological harm and place her in an intolerable position, within the meaning of article 13(b) of the Convention. The mother also stated that she would return to Italy with the child if so ordered, that the father had failed to pay maintenance when they lived in Italy and that, while there was a lack of particularity of her financial circumstances, earnings and details of financial arrangements for accommodation, life in England was one of contentment for her and her daughter. The father’s evidence was that he still lived at his parents home, that his earnings were insufficient to provide accommodation for his wife and daughter and he suggested that they should inquire of social services in Italy to obtain accommodation from charitable institutions. The judge, who met and spoke to the child, found that she was sincere in wishing to remain in England and not return to Italy, that she was settled and happy but that her views of her father were influenced by her mother’s attitude towards him. He also found that the principle of international comity while not unassailable had to be central to applications under the Convention; that children who had been abducted from their country of habitual residence by a parent had to expect to be returned; that the Italian courts which had considered the child’s circumstances were best placed to identify her welfare interests; that the mother’s potential imprisonment on return, although traumatic for the child, did not pose a grave risk of harm to her and would not be intolerable; and that the father’s limited financial circumstances did offer sufficient reassurance, and he ordered the child’s return to Italy.
On the mother’s appeal—
Held, appeal allowed. Although the judge had correctly appreciated that he had to focus on whether the exception in article 13(b) of the Convention had been established and that the mother might possibly serve a period in custody, he should have considered, on the basis of the limited evidence, what the effect would be on the child of the mother’s imprisonment and what practical arrangements could or would be made for her care and maintenance while she was in custody. The threshold test of “grave risk” in article 13(b) was undoubtedly a high one so that the child’s situation had to be examined in concrete terms. While the judge had rightly been satisfied that the transition for the child would inevitably be uncomfortable, his statement that the mother would have to bear some of the costs failed to explore what those costs would be or how in practice she would be able to meet them, both in the period after their arrival in Italy and in the short to medium term during which the child’s welfare was under consideration by the Italian court. That required careful examination and conclusions on how the child could reasonably expect to be accommodated, maintained and educated. If there had been insufficient information, the hearing should have been adjourned for more detailed information to be obtained. Although expedition was of the essence in proceedings under the Convention, the need to achieve a just outcome was even more important. The CAFCASS report, showing thar the child had already sustained considerable psychological harm from the parents’ conflict, necessitated careful consideration as to whether an enforced return would increase the likelihood of further harm, particularly if the mother had to serve a term of imprisonment. The child could be left very abruptly in the sole care of her father with whom she had not lived for several years and about whom she had negative views. The case was not of the kind where an appellate court could be satisfied that, if the judge had directed himself correctly, he would inevitably have reached the same conclusion. There might indeed be a grave risk that the child’s return would expose her to psychological harm or otherwise place her in an intolerable position. Furthermore, in the absence of any statement by the judge of what factors he had taken into account in the exercise of his discretion, the court could not be satisfied that the exercise was not vitiated by substantially the same deficiencies identified in his treatment of the issue under article 13(b). Even though the judge had striven to achieve a just outcome to the difficult issue he had to resolve, and the mother’s conduct had undoubtedly been deplorable, his conclusion had been unduly influenced by considerations of comity and the underlying policy of the Convention. Accordingly, the case would be remitted for rehearing before a different judge of the Family Division, and the unsatisfactory nature of the evidence should be remedied so far as possible before the final decision was taken (paras 36, 59–66, 68, 69).
Decision of Hayden J [2017] EWHC 1480 (Fam) reversed.
Aidan Vine QC and Martyn Bennett (instructed by PCB Solicitors llp, Shrewsbury) for the mother.
Nick Goodwin QC and Edward Bennett (instructed by Dawson Cornwell Solicitors) for the father.