|
IN THE HIGH COURT OF
JUSTICE No. CA 122/89
FAMILY DIVISION
Royal Courts of Justice
London WC2
Thursday, 23rd February
1989
Before:
MR. JUSTICE WAITE
Re BATES (Minor)
MISS P. SCOTLAND and MR.
D. M. THOMPSON (instructed by Messrs Malkins Cullens & Sumption) appeared on
behalf of the plaintiff
MR. L. SWIFT QC and MR. N.
CARDEN (instructed by Messrs
Sheridans) appeared on
behalf of the defendants
Tape transcription by C.
H. Blackwell & Partners 283 Croxted Road,
London SE2l 8NN (01-670
9927)
JUDGMENT
(As approved)
Thursday, 23rd February
1989
JUDGMENT
MR. JUSTICE WAITE: This is
an application under the Child
Abduction and Custody Act
1985 giving effect to the 1980 Hague
Convention on the civil
aspects of international child abduction.
It relates to a young
girl, aged two-and-a-half, of Anglo-American
parentage. Last Thursday
week, 9th February 1989, she was removed
by her English nanny from
the care and control of her American
mother in New York and
brought by air to this country. The
abduction took place with
the knowledge and approval of the
child's English father,
who had telephoned his authority to the
nanny from the Far East,
where he is temporarily working.
On discovering the child's
disappearance the mother acted
with great promptness. The
police and federal authorities were
alerted during the night
of 9th/10th February, as a result of
which the central
authority for the purposes of the Convention in
New York sent immediate
notification to the equivalent central
authority in England,
which is the Lord Chancellor's Department,
via the United States
Embassy in London, to the effect that the
child had been wrongfully
removed within the meaning of article 3
of the Convention;
removed, that is to say, from the State of New
York, as her habitual
residence, in breach of rights of custody
attributable under New
York law to, inter alios, her mother.
The Lord Chancellor's
Department gave immediate authority to
the mother's English
solicitor to take proceedings under the Act
and an originating summons
joining the father and the nanny as
defendants was issued at
once. These arrangements had all been
completed by about noon on
Friday, 10th February. While they were
in progress the mother had
set off in hot pursuit of her child,
catching a Concorde flight
to London. Nanny and child had arrived
only a few hours ahead of
her at Heathrow, where they were
confronted by the airport
police and the mother's English
solicitor. As a result of
discussions which took place at the
airport the child and the
nanny were allowed temporarily to stay
with the child's paternal
grandparents, who live near Birmingham.
Thanks to the speed of
modern communications and the time
difference between the two
countries, everyone concerned except
the father was either in
England or about to land there by
lunchtime on that Friday.
The lawyers in the case seem at that
point to have decided to
do their best to match the slow and
dignified processes of the
law to the speed of Concorde. The
result was a flurry of
activity in this building that Friday
afternoon. The father's
London solicitors, acting on his
instructions from the Far
East, had already issued an originating
summons making the child a
ward of the English court. In temporary
ignorance of that fact,
the mother's representatives applied in
the early afternoon ex
parte to the applications judge, Ward J.,
for a peremptory order
under the Child Abduction Act for the
child's immediate return,
notwithstanding that no hearing of the
originating summons under
the Act had yet taken place or, so far
as I am aware, been
arranged.
The judge made an
immediate order giving the mother custody
of the child and leave
forthwith to remove her from the
jurisdiction, making it
plain, however, that he expected notice of
his order to be given at
once to the father's solicitors. That was
not difficult to arrange
because by then the father's solicitors
were in the process of
giving, or had already given, notice to the
mother's solicitors of
their wardship proceedings; to which the
immediate response of the
mother's lawyers was to find another
judge, Mr. Nicholas Wall,
Q.C. (sitting as a deputy judge of the
High Court) from whom they
obtained an immediate order summarily
dismissing the father's
wardship proceedings on the ground that to
have allowed their
continuance would have frustrated the
peremptory return order
which Ward J. had just granted.
That left the father with
no recourse but an appeal, and late
that same afternoon an
urgently convened appeal court, Kerr and
Balcombe L.JJ., made a
holding order in the form of an interim
care and control order in
favour of the mother pending an inter
partes hearing of her
application for a peremptory order under the
Convention, which the
court directed to be held on a date between
l3th and l7th February
1989.
That hearing duly started
before me on Wednesday, 15th
February. It has proceeded
by agreement as in effect the hearing
of the originating
summons. A considerable body of affidavit
evidence had been sworn on
both sides in time for the hearing, and
the father's counsel, Mr.
Swift, who appeared with Mr. Carden, did
not ask for any
adjournment. The father, although in regular touch
with his solicitors by
telephone and fax, has not himself supplied
any evidence by affidavit
or otherwise. He has relied to a
considerable extent on his
co-defendant, the nanny, to maintain
his case against the
mother and support it with her oral and
affidavit evidence.
Such is the procedural
background to the family history, to
which I now turn. The
mother is 29 and the father 26. They were
married in August 1984.
Tatjana, their only child, was born on
23rd August 1986. The
mother is a tall, elegant young woman born
and brought up in the
United States of America. In her late teens
she developed addiction to
amphetamines which was only cured after
a long spell of voluntary
hospital treatment. There has been no
recurrence of that
problem. She is a forceful and also an
emotional person. She
admits to a strong temper when roused or
thwarted. She is devoted
to Tatjana, as many observers have agreed
and as can readily be seen
from photographs of mother and child
together and the detailed
diary which the mother has maintained of
the little events in her
daughter's life. The mother is still
determined, despite the
upsetting events of recent days, to keep
her marriage together if
she can, for everyone's sake and
particularly for Tatjana's.
The father I have not
seen. He was born and brought up in
England. I accept the
unchallenged evidence of a friend of both
parents that he is of a
less forceful personality than his wife
and tends in many ways to
be dependent on her. For most, if not
all, of the parents'
married life the father has experienced
phenomenal, almost
legendary success as a pop musician. He is a
member of a musical band
that enjoys international renown and very
high earnings, but which
moves at the feverish pace of those
performers who share with
their managers the knowledge that a
place at the top of the
charts is tenuous and transient. An almost
ceaseless round of public
engagements, rehearsals and recordings
means that the father has
mostly to work by night and sleep by day
and be constantly on the
move around the world. The mother, by his
express wish and also by
her own inclination, has been
consistently at his side,
sharing the same life.
The result has inevitably
been that Tatjana, for the whole of
her young life, has been
in the day to day care of a nanny, who
has perforce been her
primary carer. Unfortunately it has not
always been the same
nanny. There have been four of them so far,
consecutively. Tatjana has
become attached to each of them in turn
and they to her. It is too
early yet to judge the influence of
cause and effect and to
assess how far Tatjana's difficulties are
innate or due to the
circumstances of her unusual life, but it is
common ground that her
development has been slow. She has speech
difficulties and her
vocabulary is deficient for her age. Both
parents acknowledge that
she needs therapeutic help to overcome
these problems. Her life
until now must have been the most nomadic
almost, ever to have been
experienced by any child of her age. She
has accompanied her
parents in rented apartments and numerous
hotel suites on both sides
of the Atlantic, and on stays with her
English and American
grandparents in Worcestershire and Florida.
The father owns a house in
London and if the family can be said to
have a base anywhere it
has been in that house. It has been the
home to which they have
returned after overseas tours and during
such brief respites as the
father has enjoyed from his
professional engagements
and it has been occupied during such
periods as he has been
professionally engaged in this country to
the limited extent that
his financial advisers have so far deemed
fiscally prudent.
The parents' marriage has
for some time been under a strain
imposed partly by the
unusual life they are forced to leave and
partly by clashes of
temperament. There have been rows and
reconciliations and even
now there is hope that the strong
attachment they still feel
for each other will keep them together.
Tatjana's nanny for the
first months of her life was an
experienced maternity
nurse, Miss Wilson, in her forties, who is
acknowledged to have been
admirable in every way. The three more
recent nannies have been
younger women, more of the parents' own
age. They seem to have
been treated with an easy familiarity which
made them a close
confidante of both parents, of the mother in
particular, and left them
with an ascendancy unusual in the
employment relationship.
This has been particularly true of the
most recent nanny, Miss
Bernadette Grant. She was employed by the
parents as Tatjana's nanny
from mid-July 1988.
The events giving rise to
the current application began in
the Christmas period of
1988. The family was staying with the
father's parents in
England. The paternal grandmother told me that
she made this the occasion
of a good talking-to for both parents,
telling them she thought
they were being selfish in putting the
demands of their own
unusual lifestyle with its hectic
professional and social
commitments above the needs of their
child. To their credit,
both parents took that to heart, but it
unfortunately tended at
the same time to sharpen their
differences, because of
their diverging views as to how the
problem was to be
resolved.
The father's band was at
this point due to embark on a world
tour which would take in
first the United States of America and
then the Far East, ending
with a stay of as yet undecided length
in London from the middle
or end of April 1989. As part of those
plans the parents had
arranged to rent or borrow a New York
apartment temporarily from
a fellow member of the father's band.
The family moved into it
towards the end of January 1989, after
spending some time in a
New York hotel and also a spell in
Florida, part of which was
passed with the maternal grandparents
who live in that state.
Earlier that month the
mother had consulted a speech
therapist in New York,
with whom she had discussed arrangements
for sessions which would
also be attended by the mother. Plans to
finalise those
arrangements with the speech therapist were
frustrated by Tatjana's
eventual removal to England.
On 2nd, 5th, 6th and 7th
February 1989 the mother, Tatjana
and Miss Grant accompanied
the father on engagements in Los
Angeles (California),
Portland (Oregon), Vancouver (British
Columbia) and Seattle
(Washington). During this period an acute
difference arose between
the parents. The father was due to leave
shortly for the Far East.
He said he wanted Miss Grant and
Tatjana to go to the
London home and await his return there in
April. The mother was free
at her choice, he said, to accompany
them or join him for a
spell in the Far East. The mother was
adamant that she wished to
remain, during the father's Far East
tour, in New York with
Tatjana and her nanny. the father in the
end reluctantly agreed to
that course. In doing so he made it
clear, however, that he
regarded Miss Grant's presence as being
essential to look after
his interest, to maintain surveillance and
to report back to him. He
told Miss Grant privately that if the
mother was, as he
expressed it, "mean" to her, she was to report
to him straight away.
Very shortly after the
father's departure for the Far East
there was a furious row
between the mother and Miss Grant. It was
started, or at least
escalated, by a statement by the mother that
the time had come for her
to do what so many people had been
urging her to do for so
long and devote more of her time to the
day to day care of Tatjana
. She proposed to act straight away,
she said, towards weaning
Tatjana from her dependence upon Miss
Grant by giving the nanny
the coming weekend off and inviting the
mother's sister to stay.
Miss Grant saw that as a threat to the
arrangement which had been
approved by the father and as an
affront to her own dignity
and the view she had by then taken of
her authority. She
telephoned the father in the Far East in a
state of considerable
agitation. He authorised her to take Tatjana
immediately to England,
with the consequences which I have already
described.
When this hearing began on
15th February Miss Scotland
appeared in the dual role
which the mechanism of the Convention
imposes on all those who
represent a party applying for a return
order. Their instructions
derive in part from a parent who is
likely, in the nature of
such cases, to be extremely anxious and
upset and in part from the
Lord Chancellor, as the central
authority in England for
the purposes of the Convention. He is
bound, in the nature of
his office, to be principally concerned
with the administrative
and policy implications of such cases.
That imposes on the
applicant's representatives a difficult
dualism and I am grateful
to Miss Scotland and her instructing
solicitor for the efforts
they have made to combine those
functions in the present
case.
Mr. Swift had warned Miss
Scotland before the hearing began
that he was proposing to
challenge the wrongfulness of Tatjana's
removal within the terms
of the Convention on the ground that the
child was not, as he would
contend, habitually resident in New
York at the date of
abduction. It was also plain from the
affidavits that had by
then been sworn by Miss Grant and her two
immediate predecessors
that it was proposed, as a second-string
argument, to contend that
if the Convention did apply so as to
make the removal unlawful,
the court had a discretion under
article 13 not to make a
return order on the ground of alleged
grave risk to the child's
physical and emotional welfare if
returned.
Very sensibly and
understandably, counsel decided not to take
up time on the niceties of
onus of proof or the right to begin.
Miss Scotland might,
strictly speaking, have been entitled to say
that, since she had the
benefit of a certificate from the central
authority in New York
addressed to the central authority in
England to the effect that
the removal had been wrongful within
the terms of the treaty
and since the onus of proving grave risk
under article 13(b) lies
undoubtedly on the party alleging it, Mr.
Swift ought to be have
been made to assume the onus of proof under
both heads. As it was,
Miss Scotland undertook the opening of the
case under both those
issues without prejudice to any general
issue as to where the
burden of proof lay.
The case thus proceeded
for three days of evidence on those
two issues: was Tatjana
habitually resident in New York at the
date of her abduction; and
could Tatjana be at grave risk within
the terms of article 13 if
she was returned?
The father, as I have
said, did not give evidence, personally
or by affidavit or
statement, on either issue. He relied on the
phalanx of young nannies,
Miss Grant and the two predecessors whom
she had contacted on her
arrival in Britain and who have sworn
affidavits. His mother
also gave evidence on her son's behalf,
though with obvious
reluctance and with understandable distress.
The mother gave evidence
herself, with the support of the family's
London general
practitioner and a friend. An affidavit from
another friend of the
mother was not challenged. Each side made
generous use of the
opportunity to supplement the affidavit
evidence by questions in
chief; and cross-examination of the
principal witnesses, the
mother on one side and Miss Grant on the
other, was extensive.
Evidence did not close until fairly late in
the afternoon on Friday,
17th February and the speech of leading
counsel for the father was
still by no means concluded when the
court rose for the
weekend. Unfortunately Mr. Swift was compelled
at that point to ask to be
released from the case because of other
commitments already
arranged for this week, and the burden fell on
his junior, Mr. Carden, to
conclude the argument for the father.
He has discharged that
admirably and I am most grateful for the
able assistance he has
given the court, the more so as the burden
which he was required to
assume turned out to be appreciably
heavier than he can ever
have expected as a result of the
developments which I must
next mention.
Unknown at the time to
this court or to the father's
advisers, steps were being
taken last week in New York by the
mother's English and
United States advisers, concurrently with
this hearing in England,
to obtain a declaration from a judge in
New York that Tatjana's
abduction had amounted to a wrongful
removal within the meaning
of the Convention. That would of course
inevitably involve an
adjudication in New York upon the first of
the two issues that were
still in the process of being so
strenuoulsy contested
before myself in England, namely the
question whether Tatjana
was habitually resident in New York at
the date of abduction.
There was an ex parte hearing before Judge
Elliot Wilk in the Supreme
Court of the State of New York on that
same Friday, l7th
February, upon which we had reached the stage in
England of closing
speeches. Judge Wilk made two orders. One was a
simple and unqualified
order (to which it will be convenient to
refer as "the unqualified
order") in the following terms:
"It is hereby ordered and
declared as follows:
1. New York was the
habitual residence of the child Tatjana
Bates immediately prior to
February 9, 1989.
2. On February 9, 1989
Tatjana Bates Rhodes was wrongfully
removed from New York in
breach of actually exercised custody
rights of plaintiff
mother."
The other was an order
(which I shall call "the order to show
cause") requiring the
father, on the following Wednesday, 22nd
February 1989, to show
cause before the New York court why an
order should not be made
in the form inter alia of precisely the
relief already granted by
the unqualified order. The operative
part of the "show cause"
order declared that the court "had reason
to believe" that the child
was habitually residing in New York at
the material date, awarded
temporary custody of the child to the
mother, and directed that
the order be transmitted to the Family
Division in England.
Mr. Carden first learned
of the existence of these orders at
9.30 last Monday, 20th
February, and copies were handed in to me
when this hearing resumed
at 10.30 that day. Mr. Carden continued
with the task of
concluding the closing speech on behalf of the
father upon the basis of
the issues as they had stood at the start
of the English hearing. He
reserved the right to deal with any
submission that might be
made by Miss Scotland in regard to the
recently obtained New York
orders until after she had made clear
exactly what those
submissions were.
In the course of her reply
Miss Scotland made a fresh
submission, which had not
of course been previously open to her,
namely that the first
issue, habitual residence, was no longer
open for determination in
England but was concluded by the New
York orders. There was
obvious force in that submission, but when
its implications came to
be further argued on the Tuesday morning
of his week there was
evident doubt as to how final or definitive
Judge Wilk had intended
his order to be. The unqualified order,
standing alone, had all
the appearances of a final order, but the
simultaneous "show cause"
order threw doubt on that and suggested
that it must have been
intended as an interim declaration pending
a final determination at
the hearing fixed for 22nd February.
Since we were by then at
21st February, I decided that the best
thing in all the
circumstances would be to adjourn the case for
the 48 hours necessary to
enable that inter partes hearing in New
York to take place. I
anticipated, I confess, that the result of
that step would be that
there would come into being in New York an
order sufficiently
definitive and final to enable Miss Scotland to
further her submission,
which clearly involves a general principle
of some importance, that
when the wrongfulness of a removal has
become res judicata in the
requesting country, it binds the courts
of the addressed country
so as to make the issue of wrongful
removal res judicata in
the courts of both the requesting and the
requested state.
I gave a reasoned judgment
for my decision to adjourn,
including a brief outline
of the state which the proceedings had
by then reached in
England, and both counsel helpfully agreed a
note of my judgment so
that it could be faxed to New York and
placed before Judge Wilk
for any assistance that it might prove to
have for him.
It was learned, when the
English hearing resumed today, that
when the inter partes
hearing took place in New York yesterday
there was fairly
protracted legal argument on both sides. Again
the judge made two orders,
the detail of which and their
interrelation to each
other is still confusing, at least to minds
unused to the
technicalities of New York law. The gist, however,
is plain and is
comprehended in these words quoted from paragraph
1 of one of the orders of
22nd February. It reads as follows:
"This court would be
required to hold a factual hearing with
witnesses and submissions
by the parties in order to make a
final determination under
article 15 of the Hague Convention,
and such hearing could not
commence before March 1, 1989."
Mr. Thompson of counsel,
who in the enforced absence today of
Miss Scotland, has come to
the court's assistance on behalf of the
mother, has made common
cause with Mr. Carden in reaching the
sensible decision that it
would not be in anyone's interest to
adjourn this application
yet again and await a further-hearing in
New York. Counsel are
satisfied that it is implicit in Judge
Wilk's latest orders that
no discourtesy or breach of the spirit
of of the letter of the
Convention would be involved if I were to
proceed here and now in
England to decide the issue of wrongful
removal on the basis of
habitual residence in the light of the
evidence which I have
heard on that issue. It is implicit in the
decision of the Court of
Appeal in Re C. of 14th December 1988, so
far reported only in The
Times newspaper, that the courts in
England have jurisdiction,
at all events in the absence of any
definitive finding of
wrongful removal in the courts of the
requesting state, to
determine an issue of wrongfulness for
themselves. It is thus
agreed that there is no longer scope in the
present case for Miss
Scotland's submission as to res judicata.
That will have to be
determined on some other occasion.
For present purposes this
case is back, therefore, where it
started when it was first
opened. I have first to decide the issue
of Tatjana's habitual
residence, and then (but only of course if
that issue is resolved in
the mother's favour) the question of
grave risk.
The eleventh edition of
Dicey and Morris on The Conflict of
Laws contains the
following helpful passages at page 166 and
following, on the topic of
habitual residence. I will quote two
brief extracts.
"'Habitual residence' has
long been a favourite expression of
the Hague Conference on
Private International Law. It appears
in many Hague Conventions,
and therefore in English statutes
giving effect to them, but
is increasingly used in statutes
not based on international
conventions. One of its first uses
at The Hague was in the
context of the custody of children,
largely because of the
artificiality of domicile as applied
to young children. No
definition of 'habitual residence' has
ever been included in a
Hague Convention. This has been a
matter of deliberate
policy, the aim being to leave the
notion free from technical
rules, which can produce rigidity
and inconsistencies as
between different legal systems."
Then a little further on:
"It is greatly to be hoped
that the courts will resist the
temptation to develop
detailed and restrictive rules as to
habitual residence, which
might make it as technical a term
of art as common law
domicile. The facts and circumstances of
each case should continue
to be assessed without resort to
presumptions or
pre-suppositions."
Although that decision was
made in the different context of
section 5 of the Domicile
and Matrimonial Proceedings Act i9?3, I
follow the judgment of
Bush J. in Kapur v. Kapur [1984] F.L.R 920
in holding that there is
no real distinction between ordinary
residence and habitual
residence. The governing principle for
ascertaining the elements
of habitual residence is contained in
the speech of Lord Scarman
in R. v. Barnet London Borough Council
ex parte Shah [1983] 2 A.C.
309, where he says, at page 314:
"and there must be a
degree of settled purpose. The purpose
may be one or there may be
several. It may be specific or
general. All that the law
requires is that there is a settled
purpose. That is not to
say that the propositus intends to
stay where he is
indefinitely. Indeed his purpose while
settled may be for a
limited period. Education, business or
profession, employment,
health, family or merely love of the
place spring to mind as
common reasons for a choice of
regular abode, and there
may well be many others. All that is
necessary is that the
purpose of living where one does has a
sufficient degree of
continuity to be properly described as
settled."
When the facts of this
case are analysed with those
principles in mind, the
result, in my judgment, is as follows.
The New York apartment was
taken on originally as a temporary base
for Tatjana while the
father was proposing to be in the Far East;
it being common ground
that the traveling, climate changes and so
on would be too unsettling
for it to be possible for the child to
accompany her father
there. The New York plan had acquired a more
settled purpose by the
time that the parties were in Seattle and
Vancouver in the first few
days of February, and the father's
departure on his Far East
tour was immediately imminent. New York
had by then become the
city in which the mother wanted to stay and
in which the father had
reluctantly agreed to allow her to stay
with Tatjana, at least
until the band returned to London in April
1989. The extent to which
New York would feature in their lives
thereafter would depend
very much on the decision which the
parents then made about
their personal lives, both generally in
relation to the future of
their marriage and specifically in
relation to the problem of
reconciling Tatjana's special needs
with the demands of the
father' working career. In the mean time
Tatjana was to receive
speech therapy in New York in which the
mother would participate.
The residence whose
habituality has to be established is that
of the child. In the case
of a child as young as Tatjana the
conduct and the overtly
stated intentions and agreements of the
parents during the period
preceding the act of abduction are bound
to be important factors
and it would be unrealistic to exclude
them. I am satisfied that
the arrangements that had been agreed,
however acrimoniously,
before the abduction date between the two
parents for Tatjana's
care, accommodation and therapy treatment in
New York during the period
of three months or so that would be due
to elapse before the
father's return to London amounted to a
purpose with a sufficient
degree of continuity to enable it
properly to be described
as settled. I am satisfied, in short,
that Tatjana was
habitually resident in New York State at the time
of her abduction on 9th
February. I am satisfied also that her
removal by the nanny was
in obvious breach of the mother's rights
of parental guardianship
(jointly with the father) under New York
law, and that accordingly
the child's removal by Miss Grant was
wrongful within the
meaning of article 3.
I am bound therefore by
article 12 to order Tatjana's return
to New York forthwith,
unless I am satisfied that, for the
purposes of Article 13(b),
there is a grave risk that her return
would expose her to
physical or psychological harm or otherwise
place her in an
intolerable situation. Grave risk, as the Court of
Appeal accepted in Re A.
[1988] 1 F.L.R. 365, means a substantial
risk, one which is out of
the ordinary.
The mother's plans, should
she obtain an order for Tatjana's
return, would involve her
staying in England for a short time to
make the necessary
arrangements for Tatjana's future care. It will
come as no surprise to
anyone that the mother would not propose to
re-engage Miss Grant; any
more, I suppose, than Miss Grant would
be willing to accept such
an invitation. The mother would like
therefore, either to ask
Miss Wilson, who is currently working in
New York, to come back to
her (and she has received some
indication from Miss
Wilson that this might be possible), or to
engage a new nanny to be
vetted by the family doctor, Dr. Wheeler,
who gave evidence and is a
physician in whom both sides have
confidence.
In deploying the father's
arguments that the child would be
at grave risk if returned
under the various heads mentioned in
Article 13(b), Mr. Carden
was faced with the difficulty that the
father has not seen fit to
lay evidence before this court
personally or by affidavit
affirming his own belief that Tatjana
would be at risk if
returned to her mother. For this the father's
case is dependent
virtually entirely on the evidence of the
various nannies about
outbursts of temper on the mother's part and
alleged episodes of her
rough or inappropriate handling of the
child. I am wholly
satisfied that the evidence of the various
nannies in this regard was
greatly exaggerated and that Tatjana
would be under no risk of
physical injury, grave or otherwise, if
she were to be returned to
her mother's care. Under the head of
psychological harm, Mr.
Carden relies upon the child's speech
difficulties and the fact
that she is undoubtedly at present
nanny-dependent, but I do
not consider that really affects the
position at all because no
one suggests that the speech therapy
she would receive in New
York is in any way inferior to the
equivalent therapy she
would receive in London, and she would have
a nanny on either side of
the Atlantic anyway.
Then Mr. Carden wraps all
the considerations under the
Article together and says
that Tatjana would be at grave risk of
physical or psychological
harm or of being placed in an
intolerable situation
because the mother is allegedly prone to
take cocaine. This aspect
of the case was gone into very deeply in
evidence, and I am
satisfied that the true position is the
following. The mother,
because of her past difficulties many years
ago, is well aware of the
problems of addiction. She knows that
cocaine is an evil and
pernicious drug, capable of ruining her
life as much as it is any
other's. There have been a few occasions
- and I am satisfied that
they have been only a few - when the
mother has taken a line of
cocaine, that is to say, snorted it,
when she has been to a
late party and perhaps had too much to
drink. It is to be
remembered that in the circles in which the
mother moves cocaine is,
most regrettably, all too readily
available. I am convinced
that the mother has formed a genuine
resolve never again to
allow herself to be exposed to the least
temptation to take hard
drugs and I am satisfied also that she
will stick to that
resolve. She was unwise enough recently to
accept an offer of puffs
on a marijuana joint from a friend, but
it made her feel giddy and
she is similarly resolved to have no
further truck with soft
drugs. I believe the sincerity of that
resolve also.
I am moreover satisfied
that this case, distressing though it
has been for her, has
shocked her into a dramatic awareness of
something that she was
beginning to know already, namely that she
must plot a new course in
the life of herself and her child. She
must have earlier nights
and fewer parties and play a much more
significant role in the
ordinary everyday tasks of child minding.
In summary, I find that
there is no risk, certainly no grave
risk, that the child's
return would expose her to physical or
psychological harm or
otherwise place Tatjana in an intolerable
situation. That finding
means that I have no discretion under the
Act. It becomes my duty
under article 12 to make an order for the
return of Tatjana
forthwith. That is not to be understood as
standing in the way of the
mother's plans to remain in London
while she makes her
arrangements about the future care of Tatjana,
as I have mentioned; nor,
least of all, is it intended to prevent
her remaining here long
enough to try to establish the
reconciliation which she
still wants with her husband. I hope that
it is possible for that to
take place. If it does, they will have
learned many lessons from
the unfortunate events I have described.
One of them perhaps will
be that nannies, as much as the rest of
us, are liable to have
their heads turned if they are given too
much power, and that it
would be wiser in future to stick to a
more formal relationship.
Before I leave the case
there are two comments which I think
it might be helpful to
make. I wholly accept that the decision
not to tell the father's
advisers or the court about the proposed
application to the New
York judge last week was undertaken
responsibly and after full
and careful consideration. It was
nevertheless, in my view,
an unfortunate decision. These cases
are, in the nature of
things, bound to involve a sense of urgency,
clients whose feelings run
high, and strong apparent advantages in
tactical gains.
Nevertheless, the smooth and harmonious
functioning of the
Convention requires that the parties' advisers
should, sometimes perhaps
against their natural inclination, be
scrupulously candid and
open in their dealings with their
opponents and the court,
bearing in mind that they are enjoying
the privileges of a fast
priority procedure.
The second comment is that
the fast procedure is one already
laid down by the Act and
by order 90, and it ought, for most
purposes in most cases, of
itself to be rapid enough. It should
not normally be necessary
for either party to attempt to
accelerate the procedure
yet further by invoking interlocutory
proceedings - especially
ex parte interlocutory proceedings - in
an attempt to obtain final
orders on a summary or ex parte basis.
The interlocutory process
is always, of course, properly available
to enable directions to be
give (ex parte if necessary) for the
care and control of, and
access to, the minor in England while the
hearing of the originating
summons is still pending. The lesson of
this case is, if anything,
that in the law things can sometimes
happen almost too quickly.
Had an early date been obtained for the
hearing of the originating
summons and had the parties been
willing to wait until
then, there might have been time - who knows
- for the dust to settle
and for the soothing influence of calm
and quiet deliberation to
work its way towards the bringing about
of an amicable resolution
of the issues which it is the duty of
the central authority
under Article 7 of the Convention to achieve
whenever it can.
* * *
|
