RS v KS [2009] EWHC 1494 (Fam) (26 June 2009)

Neutral Citation Number: [2009] EWHC 1494 (Fam) Case No: FD08P00203 IN THE HIGH COURT OF JUSTICE FAMILY DIVISION Royal Courts of Justice Strand, London, WC2A 2LL 26/06/2009 B e f o r e : MRS JUSTICE MACUR ____________________ Between: RS (Plaintiff) - and - KS (1st Defendant) - and - LS (By his Guardian Marion Werner-Jones) (2nd Defendant) ____________________ Mr Teertha Gupta (instructed by Messrs. Mishcon de Reya) for the Plaintiff Mr Edward Devereux (instructed by Messrs. Dawson Cornwell) for the 1St Defendant Miss Indira Ramsahoye (instructed by Messrs. Reynolds Porter Chamberlain) for the 2nd Defendant Hearing dates: 11th – 12th June 2009 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Mrs Justice Macur DBE: This is an application by Mr R S ("the father") pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Convention) and Council Regulation (EC) No 2201/2003 ("the Regulation") as incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985, by which he seeks the summary return of his child, L, (d.o.b. 5th April 2005) to Lithuania. Miss K S, ("the mother"), accepts that L remains in this jurisdiction since January 2007 without the father's consent; that the father had "rights of custody" and was exercising them prior to L's removal from Lithuania (see Articles 3 and 5 of the Convention); and that L was habitually resident in Lithuania prior to the retention (see Article 4 of the Convention). She relies upon Article 12 and 13(b) of the Convention, arguing that in the latter respect there is no "adequate arrangement" that can be made "to secure the protection" of L after his return. (See Article 11(4) of the Regulation.) (i) I have decided to refuse to order the return of L for the reasons indicated below. (ii) I am satisfied that the father has been given the opportunity to be heard. (iii) I invite the courts of Lithuania to stay the proceedings before them in so far as they relate to L and invite the courts of the United Kingdom to assume jurisdiction. (iv) I direct that a copy of the court order of non return and of the relevant documents including a transcript of my judgement shall be sent to the Lithuanian court with jurisdiction in relation to L within one month of today. The factual background The mother and father are Lithuanian nationals. They met in or around 2003 and in the summer of that year moved together to Sweden, where the father worked as a builder and the mother worked as a cleaner. When the mother was pregnant with L, the parties agreed that she should return to Lithuania and she did so in or around September 2004. The father apparently visited Lithuania for Christmas in 2004 and in February 2005 when he proposed to the mother. They married on 10th March 2005 and L was born on 5th April 2005. The father then stayed in Lithuania until sometime in around May 2005, when he returned to Sweden. The mother visited and stayed with the father in Sweden in July/August 2005, for about two months. The father visited the mother and L in Lithuania at Christmas time 2005 and thereafter travelled between Sweden and Lithuania approximately every two months, staying for periods of one to two weeks. In or about December 2006 the father agreed that L could accompany his mother to this jurisdiction for the purposes of a holiday from 10th January 2007 until 1st February 2007 and provided a written consent dated 8th January 2007 to this effect. The relevant border control authorities were informed as required. The mother and L travelled to this country on either the 10th or 12th January 2007. Unbeknownst to the father, the mother by this time had consulted lawyers about the deteriorating state of their marriage. The mother makes allegations of domestic violence during the marriage against the father. He has made no admission of the same, but the Kaunas Regional Court, sitting in its appellate capacity have upheld them by judgment dated 23 December 2008. They have, I find below, no relevance to my determination of the case and are merely recorded here as part of the background circumstances. Mr Devereux, on behalf of the mother, realistically does not solely rely upon them to establish an exception to the obligation of summary return to the place of habitual residence prior to removal pursuant to Article 13(b) of the Convention. The history of the "divorce proceedings" has formed the basis for many repeated, un-opposed applications for adjournments in this jurisdiction and are therefore indicated in brief below. By a "statement of claim" made in the Regional Court in the District of Prienai dated 10th January 2007 and issued by the court on 11th January 2007 the mother sought, inter alia, the dissolution of marriage, child maintenance and residence of L. On 1st August 2007, the father made a cross application to dissolve the marriage. There were directions hearings on 25th October 2007, 13th or 30th November 2007, when the two proceedings of the mother and father were merged, and on 20th December 2007. The final hearing was heard on 29th February 2008 and judgment reserved. On 14th March 2008, Judge Urboniene gave judgment for the mother, dissolving the parties' marriage and granting her residence of L. The father appealed. Directions in the appeal were given on 9th June and 2nd September 2008. The appeal was heard on 20th October 2008 and judgment provided on 23rd December 2008 whereby the appeal was "granted partially" and the decision of 14th March 2008 was annulled and returned for retrial. There has been an abortive hearing on 12th May 2009 when neither party attended before the Court. According to the mother's evidence, she was informed by her solicitor that the father had indicated that he was not going to attend and that therefore it was pointless for her to do so and the next hearing in Lithuania concerning divorce and residence is due in September 2009. I accept her evidence on this issue. The mother has travelled to Lithuania on occasions in order to attend before the Court. The history of court proceedings concerning L's return to Lithuania commences with letter dated 18th April 2007, written by the father to the Prienai District Municipality Administration Children Rights Protection Division requesting that they "help me to learn where my son L S currently lives, to help me to take back him, to grant the possibility to take care of him and to participate in son's education". In a letter dated 26th April 2007 in response he was told that – "…the division has no power to repatriate children or to identify their living place in a foreign country. Basing on the fact that your wife was granted the temporary permission to go to a foreign country with her son and if it is determined that she breaches the indicated time of stay, you are entitled to address law-enforcing bodies in any EU country regarding child's kidnapping." On the same day, the father's Lithuanian solicitors informed the Prienai District Police Commissariat that the M had wrongfully retained L and requested a search be undertaken for L. On 4th May 2007, the F applied without notice to the Prienai Parish Court requesting the return of L to Lithuania and a residence order. The issue of his "petition" was refused on 28th May 2007. The father successfully appealed this order and by order on 4th July, 2007 the application was restored. Convention Proceedings The father applied to the Lithuanian Central Authority on or around 14th January 2008 which communicated the application to the English Central Authority by letter dated 21st January 2008. Solicitors were instructed by letter dated 28th January 2008. The father's representatives first attended on a without notice basis before Bennett J on 31st January 2008 and issued their Originating Summons sometime on 1st February 2008. The mother was served on 2nd February 2008 The matter was re-listed on 11th February 2008; 17th March 2008; 7th April 2008; 22nd April 2008; 2nd May 2008; 13th May 2008; 21st May 2008; 10th June 2008; 25th July 2008; 18th September 2008; and 3rd November 2008. Initially public funding "issues" for both the mother and the father delayed progress. The mother was then tardy in serving a statement of defence. A direction that "there shall be no requirement for the parties to give oral evidence" on 2 May 2008 was apparently superseded on the basis of paper application on 12 May 2008 that "the Defendant shall attend the hearing provided for…in person". The father was then slow to respond to the mother's "statement of defence" and was required to do so by Charles J "on a date prior to the directions hearing which had been listed on 24 June 2008, and yet on 25 July 2008, "upon the basis that the decision of the appellate court Lithuania is still pending, but the final hearing in that court is expected on 2 September 2008" Holman J ordered the mother to file a "Defence Statement" by 11 August 2008, which time was further extended by Parker J on 18 September 2008, when the decision of the Lithuanian court was then said to be expected on 2 October 2008. In September the parties sought and were granted permission to seek an expert's report on the issue of "rights of custody". On 3 November 2008 King J accepted the undertaking of the mother to comply with the Lithuanian court's directions as to the provision of documents and the parties were to make contact with Thorpe LJ's office to seek assistance to "minimize" delay and assist in the determination of the dispute between the parties. On 15 January 2009, Wood J adjourned the hearing to 6 April in the absence of the father due to ill health despite his "attendance" on the telephone assisted by an interpreter in the United Kingdom, ordered the father to attend but directed that "the matter of oral evidence is hereby reserved to the trial judge", made L a party to the proceedings and permitted the mother to file "a further defence statement" and affidavit in limited terms. The matter came before me on the 6 April 2009. The father did not attend. There was no available explanation for his non attendance which "surprised" his current legal team. I rejected the mother's application to strike out his application for summary return and granted the application made by Mr Gupta on the father's behalf for an adjournment, but reserved the case to myself to commence on 11 June. I required both parties to attend the hearing making clear that I would proceed in the father's absence if necessary and appropriate to do so. I required the father to file an affidavit dealing with his absence and failure to give instructions, the date when he had first been notified of the mother's intention to retain L in this jurisdiction and his purported conversations with the mother's Lithuanian solicitor. It is a trite but inevitable comment that the enormous expense of these numerous hearings made little progress towards resolution of the father's application and would necessarily have provoked anxiety and frustration and defeated the over-riding principle of a speedy determination as required by the Convention and Regulation. (See Article 11, of the Convention and Regulation). On the 5 June 2009 an application was made on short notice to inform me that the father was unlikely to attend the hearing and to seek further directions. I considered that this possibility had already been catered for in the order made on 6 April 2009 which provided that, save for just cause, the case would proceed in his absence. I made clear that since the only oral evidence that would be before the Court would come from the mother and that there were obvious implications that followed and inferences that I may be asked to draw from the father's failure to attend, he should be reminded of the consequences of his non attendance. The father failed/refused to attend the final hearing depending upon whether the account he provided in his statement dated 8 June 2009 is correct or whether the oral telephone instructions he gave to his legal team about the same time are the more accurate. The first suggested that he would attend the hearing if his work commitments/ financial resources permitted. The second, more bullish in tone, to the effect that so far as he was concerned this was a matter for the Lithuanian courts and not those of the United Kingdom and he would await L's return. Neither reason satisfied me that I should adjourn the proceedings further of my own volition and no such application was made on his behalf. I deemed the father to be present in that he was represented and was assured that Mr Gupta had sufficient instructions to proceed. Those instructions confirmed that the facts relating to L's retention and notification of retention remained in dispute. I considered the affidavit evidence of the parties was at odds, unclear or self contradictory and decided to proceed to hear the mother's evidence, as intended. Ms Ramsahoye, instructed on behalf of L, attempted to dissuade me hearing the evidence of one party in the absence of the other. Unusually she was unable to sustain the point of what I found to be the nebulously expressed and formulated concern of her professional and lay client (L's guardian), who nevertheless wished me to proceed with the application. Whilst recognising that receipt of oral evidence is the exception rather than the rule in what should be summary proceedings, I considered that this was an exceptional case involving a "limitation point" prospectively defined by hours not weeks or months. Mr Devereux in his "position statement" claimed that the contents of father's first statement supported the mother's written evidence in terms: "Whilst K was in England we spoke on the telephone and it was then that she informed me that she had no intention to return to Lithuania". However, by reason of the manner in which his statement had been prepared, that is written in English - no doubt from information obtained via the relevant Central Authority – and then translated into Lithuanian for his approval, and what appeared to be inappropriate use of some tenses, I regarded this to be ambiguous in the light of the mother's self contradictory written evidence on crucial dates. I concluded therefore that she was entitled to clarify the same and the father was entitled to challenge her assertions – since he had taken issue with them in subsequent statements. There had already been unconscionable delay, the father's legal team anticipated that evidence would be subject to challenge by cross examination and knew of the prospective inferences I felt at liberty to draw against him given his intentional absence if the mother, who bore the burden of proof to substantiate "exceptions" to her obligation to return L to Lithuania, sufficiently clarified her written evidence. Time was available to hear the evidence and it seemed to me that the overall interests of justice would be served in testing the disputed facts upon which rested the availability or otherwise of one of the mother's so called defences, namely that L had settled in the jurisdiction. Regardless of the position revealed by the documents, Mr Devereux argued that in the face of the father's intentional and inexcusable absence in disobedience of a Court order I should 'strike out' his application. He relied upon the case of Re G (Abduction: Striking out Application) [1995] 2 FLR 410. I considered the factual basis of that case to be far different from this. The 'G' children had, like L, also been present in this jurisdiction for two and a half years; however their father had not sought any directions in his "Hague Convention" summons, issued eighteen months after the wrongful retention, for eight months. In this case there have been numerous court hearings and the father does not bear sole responsibility for the delay as indicated above. I refused his application. In hearing the mother's oral evidence it became clear that her written evidence was at odds with her present recollections on the significant aspect of when she informed the father that she would not be returning with L to Lithuania. (Ultimately I did not take this to go to her credibility rather than to be the product of the similar means of preparation of her affidavits to that of the father. That is, her written statement was penned in her second language, English, and translated to her to agree its contents. The nuances of a first hand account are thereby lost and the possibility of misunderstandings increases.) Contrary to her written evidence to the effect that she told the father that "she had no intention to return to Lithuania" on or about 19th January 2007, it became clear that she had told him that she had no intention to return to him in Lithuania. This is entirely consistent with the facts that she had instructed a "divorce" lawyer in Lithuania immediately before travelling to London, her petition of divorce was issued on 11th January 2007 and the father apparently visited the lawyer's office regarding the same before the 1st February 2007. She conceded in cross examination by Mr Gupta, who appeared on behalf of the father, that she anticipated her return to Lithuania "after the dust had settled", which by implication would be fairly soon since she expected the divorce proceedings to be over quickly, and had not decided to 'settle' in the United Kingdom until after six months had elapsed when she felt "at peace" here. But she also made plain that at her point of departure from Lithuania she had had no intention of returning L to Lithuania on the expiry date of the written consent she had obtained from the father. I find on the totality of her evidence: (i) that she had no intention to honour the agreement reached with the father as to when she would return L to Lithuania prior to her departure from Lithuania; (ii) at the time of her arrival she had no settled intention of remaining in the United Kingdom: (iii) she formed an intention to settle in the United Kingdom in or about June/July 2007; (iv) she did not inform the father of her plans prior to 1st February 2007. In addition I heard, at the invitation of the parties, Ms Marion Werner-Jones who was appointed as L's Guardian and who had prepared reports dated 26th March 2009 and 8th June 2009, visited the mother and L at home on 13th and 17th March 2009, contacted L's nursery manager and the local Social Services Department and spoken to the mother and L on the telephone on 28th May and 4th June 2009 to be updated as to the father's contact with L. The reports are positive as to the mother's care of L who is described as a "happy, lively, very loving and affectionate little boy" who "switches with ease between conversing in the Lithuanian language with his mother and grandmother and in English with others". Ms Werner-Jones confirmed that he is very settled in his nursery, which he attends 5 days a week, with an established group of friends, is popular with the staff , very attached and settled with his mother. The nursery had informed her that L is a child "who takes time to get used to new routines" but once settled was secure. He had shown considerable reluctance at the prospect of moving nurseries when his mother moved house. In her unequivocal view, given his age and the date upon which he arrived in this jurisdiction, his 'retrievable memories' are entirely those of living in the United Kingdom. There has been no recent contact between the father and L which appears to be his default rather than the mothers. The following issues arise for determination: (1) Is this a case of wrongful removal or wrongful retention? (2) What is the relevant date of either removal or retention? (3) If the point of wrongful removal or retention is found to have occurred over one year prior to the issuing of the father's Originating Summons, is L "settled in his new environment"? (4) Is this a quasi-settlement case in that given the elapse of time and the fact that L is "settled" to order his return to Lithuania would give rise to a grave risk of psychological harm or otherwise place him in an intolerable situation? (5) If either Article 12 or 13 (b) exceptions are made out, how should the court exercise its discretion? (6) In the event that neither 'exception' is established, should I 'stay' the order for L's return pending the disposal of proceedings in Lithuania? (7) Is it an appropriate case to seek transfer of jurisdiction of the children's proceedings in Lithuania pursuant to an Article 15 Regulation request? My findings on the evidence indicated in paragraph 27 above lead me to conclude that this was a case of wrongful retention which subsumed a wrongful removal. That is, the mother concedes that prior to his removal to the United Kingdom, she had no intention to return L in accordance with the agreement she reached with the father and therefore his consent to the trip was obtained by deceit and would be vitiated. However, the real mischief perpetrated by the mother was to retain L beyond the agreed date of his return. I draw an inference from the fact of the written consent that prior to that time the father would have 'acquiesced' in L remaining in the United Kingdom until the conclusion of his holiday on 1 February 2007 unless he had been notified by word or deed that the mother had no intention to honour their agreement in the meantime. (See Re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2007] EWHC 2807 (Fam) ; [2008] 2 FLR 351 at 365, paragraph 50). In that this interpretation admits the possibility that wrongful removal and wrongful retention are not mutually exclusive, I depart from the reasoning of the speech of Lord Brandon of Oakbrook in Re H (Abduction: Custody Rights) [1991] 2 AC 476 at 500, but do not depart from his determination that the act of retention is an event occurring on a specific occasion. My approach would seem supported by that part of the speech of Lord Slynn of Hadley In re S (A Minor) (Custody: Habitual Residence) [1998] AC 751 at 767G. The question therefore is whether the mother's un-communicated decision to retain L beyond 1 February 2007 was sufficient to constitute a 'wrongful retention'. In Re AZ (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682, Sir Michael Kerr said (at 689D): "Without deciding the point, particularly since it has not been pressed in argument, I am doubtful about the first ground on which the judge relied. It seems to me that the un-communicated decision which the mother took in her own mind in November 1991 not to return the boy on 21 January 1992 could hardly constitute a wrongful retention in November 1991. It was at most an un-communicated intention to retain him in the future from which she could still have resiled." In re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70, Wall J (as he then was) said (at 81F): "However, it seems to me that where a parent, as here, announces as part of her case that she does not intend to return the children to Israel at all she can no longer herself rely on the father's agreement to the limited period of removal or retention as protecting her either under article 3 or under article 13(a). As Mr Turner puts it, she cannot have the benefit of the agreement without the burden. Equally, as an issue of fact, [my underlining] it seems to me that the decision which precedes the announcement, even if not communicated to the father, must be capable itself of constituting an act of wrongful retention." Any attempt to reconcile the two opinions could only be made on the basis that Wall J decided the case before him on its facts and without the necessity to consider the quasi 'limitation' period imposed by Article 12, since in Re S (above) the mother was seeking to defeat the father's application for summary return of the children to Israel by arguing he was premature and not that he was too late. It appears that in this particular case Wall J was motivated to ensure the father was not disadvantaged by a summary dismissal of his case. In that he decided as a matter of law that an intention to wrongfully retain does not have to be communicated to the left behind parent/custodian in word or deed for the purpose of the twelve month period which triggers a prospective exception to summary return on the basis of 'settlement', I respectfully disagree. I adopt the argument of Beaumont and McEleavy, in The Hague Convention on International Child Abduction at page 41, that this approach would "threaten certainty" and "penalise an applicant by commencing the limitation period before he could [or, I insert, should] have been aware that his rights had been breached." That is not to undermine the safeguarding of the child's position which in my view may be protected in appropriate cases where the facts reveal a sufficient degree of 'settlement' in particular circumstances to call into question the triggering of Article 13(b). Mr Devereux has highlighted the approach of other jurisdictions on the point of what may be termed to be anticipatory wrongful retention by reference to the cases of Zucker v Andrews 2 F Supp 2d 134; Toren v Toren 191 F 3d 23 (1st Cir 1999); P v The Secretary for Justice [2004] 2 NZLR 28 overturning P v The Secretary for Justice [2003] NZFLR 54. I do not consider that they advance the case for or against an un-communicated intention of wrongful retention. I determine the relevant date for the purpose of assessing whether the father commenced the proceedings "after the expiration of one year" (Article 12) is 2 February 2007; that is, the date upon which L should have been returned to Lithuania in accordance with the agreement in the absence of any overt indication by the mother that she had resiled from that plan. I accept Mr Gupta's argument that the written consent gives inclusive dates of removal. In any event, the father appeared by Counsel before the Court on 31 January 2007 "In the Matter of the Child Abduction and Custody Act 1985; And in the Matter of the Council Regulation (EC) No. 2201/2003" and thereby in my judgement "commenced proceedings" by seeking directions including a "location order", which was granted upon an undertaking to file an Originating Summons, as it was, the next day. Therefore whether the proceedings commenced on 31st January, 2007 by without notice hearing and judicial consideration of the father's complaint, or 1st February 2007 upon actual issue, the father may legitimately claim to have negated the mother's recourse to Article 12". Regardless of this decision in so far as it disposes of Article 12 considerations I nevertheless consider that the circumstances of this case require me to review the facts that would otherwise be relied upon by the mother to establish "settlement". In doing so I indicate the decision that I would have reached if the twelve month period had otherwise have been found to have elapsed, but also with a view to Article 13(b). In Re N (Minors) (Abduction) [1991] 1 FLR 413 Bracewell J held that the term "settled" should be given its ordinary and natural meaning and that in this context has "two constituents. First, it involves a physical element of relating to, and being established in, a community and an environment. Secondly,..it has an emotional constituent denoting security and stability." In that this definition may be considered formulaic, Mr Devereux argues that the concept of settlement may well have been refined by the decision in Re M (Abduction: Zimbabwe) [2007] UKHL 55 :[2008] 1 FLR 241 at 268, paragraph 52, and in doing so relies upon the judgement of Black J in F v M and N (Abduction: Acquiescence: Settlement) [2008] EWHC 1525 (Fam) ; [2008] 2 FLR 1270 at 1289 at paragraphs. 66 - 68; and M v M (Abduction: Settlement) [2008] EWHC 2049 (Fam) ; [2008] 2 FLR 1884 at 1893 at paragraphs 33 - 37. I agree that in so far as it was considered to be a restrictive approach, those limits have been relaxed although not to the extent to permit the Court to merely reflect upon physical location and the passage of time. I approach this aspect of the case with a view to assessing L's degree of integration into his physical and social environment entirely independent of his dependence upon and attachment to the mother as his primary carer. The evidence of Ms Werner-Jones, oral and written, satisfies me that L is integrated so completely within his new life in time, location and physical and social environment that he could only be described as 'settled'. In reaching this conclusion I posed the question to myself as to the effect upon L of his mother's removal/absence from him in order to cross check the result. My answer was that on the evidence before me his sense of devastation would be assuaged by him continuing his daily routine in surroundings known to him and accepted by him as essential ingredients in his life. This is rendered so by reason of his age and development now and at the time he arrived in the United Kingdom. He has known no other life and has had to make no conscious adjustment to a change in his geographical circumstances. He has no cognitive recognition of an earlier and different life or community. Whilst his age and commensurate development and maturity necessarily render him 'dependent' upon the mother's sense of well being and security, they also serve to inoculate him from the uncertainties of the mother's position, unclear in her initial intentions as Mr Gupta demonstrated them to be, and uncertain as to the security of her continuing residence with L by reason of the proceedings in this jurisdiction and Lithuania. There is no evidence that he is other than blissfully unaware of the Court proceedings, and has seen Ms Werner-Jones as nothing more than another interesting adult whom he can charm and engage with. That undue delay and settlement may, in appropriate cases, constitute the basis of an argument that a child would be exposed to an intolerable situation if summarily returned to their country of habitual residence prior to removal is recognised by Baroness Hale in In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 ; [2007] 1 AC 619 at 639 at paragraphs 51 - 53. In particular I note that the word "intolerable" in this context should be taken to mean "a situation which this particular child in these particular circumstances should not be expected to tolerate". Such an approach is fact specific and, in my opinion, does not detract from nor undermine the well established statement of principle found in Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, that there is: "…an established line of authority that the court should require 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." In this case I consider that to disrupt L's present living arrangements would have more far reaching consequences and adverse impact than in the case of an older and less sensitive child able to comprehend a sudden departure from one routine and community and the prospect of the next and would transgress the "inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence." I do not come to this decision lightly, being alert to the reason for the delay which other parents in a similar situation to this mother may adeptly manipulate to their own advantage by one unmeritorious appeal after another in a foreign jurisdiction. In many such cases the 'absconding' parent may well 'unsettle' the relevant child by virtue of their own inevitable uncertainty as to the outcome of proceedings. In light of that finding I consider the mother to have discharged the burden of establishing a 'defence' under Article 13(b). I must therefore consider whether it "is established that adequate arrangements have been made to secure the protection of the child after his or her return" (Regulation, Article 11(4)). The injunctions or undertakings which are habitually directed or obtained prior to the child's return to the place of his habitual residence are aimed to secure the 'absconding' parent's safety from prosecution, physical intimidation or threat of violence, and are aimed at providing living standards and care of the child until the relevant Court is seized of the matter at the first inter partes hearing, and thereby are designed to safeguard the integrity of the child's position. Whilst such undertakings would ensure that L was not peremptorily removed from his mother's care they could not mitigate his profound sense of loss, as I have found would occur as indicated above. I can think of no safeguards which would supply or mitigate the loss of his community, society and present lifestyle in the short or medium term and therefore, at his age, the "grave risk" of psychological harm or intolerability will go unabated. I make clear at this juncture that I would not regard the general descriptions of domestic abuse as found by the Lithuanian appellate Court to satisfy the Article 13(b) exception or otherwise to be a situation incapable of resolution by satisfactory safeguards. That the mother has substantiated an 'exception' to return is no bar to an order that she return L subject to the discretion of the Court. In the exercise of my discretion I bear in mind the approach as indicated by Baroness Hale in Re M (Abduction: Zimbabwe) [2007] UKHL 55 ; [2008] 1 FLR 251 at 266, at paragraphs 43 and 44. "…in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court the court a discretion in the first place and the wider considerations of the child's rights and welfare. ………. …the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be." I therefore weigh in the balance issues of "general considerations of comity,…confidence" and deterrence which Mr Gupta urges upon me, the position of the legal proceedings in Lithuania, which Mr Devereux describes as back at square 1, the facts that relate particularly to L and would otherwise found the 'exception' against summary return pursuant to Article 13(b) as re-iterated by Ms Ramsahoye, and bear in mind "that the major objective of the Convention cannot be achieved. These are no longer 'hot pursuit' cases. By definition, for whatever reason the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's ……. integration in her new community" (Re M (above) at paragraph 47.) I have considered in this exercise whether I am able to fulfil the objectives of the Convention in the return of a child wrongfully removed/retained from his place of habitual residence and ameliorate the harm/intolerable situation I have identified above by 'suspending' or 'staying' an order for return on conditions as did the President of the Family Division and Black J in JPC v SLW and SMW (Abduction) [2007] EWHC 1349 (Fam) ; [2007] 2 FLR 900 , and F v M and N (Abduction: Acquiescence: Settlement) [2008] 2 FLR 1270 respectively. Mr Devereux urges me to do so if I find against his other arguments. Mr Gupta argues that to do so would undermine the principle and spirit of the Convention by the overlay of an order for summary return by a "perverse simultaneous order rendering it unenforceable". I consider the possibility of 'suspension' of order to be well within the armoury of the Court at the time of exercising it's discretion or considering the timing and imposition of 'safeguards' necessary to protect the child upon return. However, its deployment is necessarily fact specific and will certainly be the exception rather than the rule for the reasons urged by Mr Gupta. In this case I have contemplated a stay of order under both 'safeguard' and discretion and reject it since I conclude that that which seeks to protect L will promulgate the harm it seeks to abate. Having adjudged him on the evidence to be 'settled' to the relevant degree which invokes Article 13(b), to delay any appropriate return would mean that the harm he is at grave risk of suffering is increased with his ever increasing establishment, stability and security of life in the United Kingdom and his foreseeable lack of comprehension in the short and medium term as to why he would be alienated from home, family and friends. In this I am fortified by paragraph 107 of the Perez-Vera Report to this effect: " In the first paragraph [of Article 12], the article brings a unique solution to bear upon the problem of determining the period during which the authorities concerned must order the return of the child forthwith. The problem is an important one since, in so far as the return of the child is regarded as being in its interests, it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it – something which is outside the scope of the Convention…..". This is not a case such as JPC v SLW and SMW (Abduction) and F v M and N (Abduction: Acquiescence: Settlement) (above) where in both cases the courts of habitual residence were well advanced with the children's cases and/or able to proceed expeditiously to conclusion. The Lithuanian Court has still to re-commence the children's proceedings once both mother and father fully engage with the process. The father has shown a recent reluctance to do so, as I find above, no doubt by reason of his work commitments in Sweden. Before concluding this exercise of discretion I have considered Mr Gupta arguments that I must also weigh in the balance Articles 11(7) and (8) of the Regulation, that is the right of the father to pursue his application for custody, which could result in an order for return of the child enforceable in accordance with Section 4 of Chapter 3 of the Regulation. He submits that this would be the worst of all possible scenarios where the Court would have 'lost the ability' to organise a smooth transition and return for L. I reject his arguments as relevant to this exercise of discretion. It is clear that the order for return in such circumstances could only be the result of an examination of welfare issues – a task this Court is unable to undertake within the present "Hague" proceedings. In all these circumstances I exercise my discretion against ordering an immediate return of L to Lithuania. In the light of my refusal to order L's return and in all the particular circumstances of this case, and with the acceptance of the mother, I consider that it is appropriate to invite the Lithuanian Court to stay the case as it relates to L's residence and contact and invite the English Court to assume jurisdiction of the same. The mother, it seems to me, has become habitually resident here, and these Courts will be better placed to conduct any further necessary welfare investigations into L's present circumstances, and those in which he has lived during the past two and a half years. The case can be disposed of speedily if both parties engage. The father is not full time resident in Lithuania and will have equal geographical access to the Courts in this jurisdiction as he would in Lithuania. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII