Ever since the defining case of Re L & Others (children) in 2000, the courts have been particularly aware of the effect that domestic violence can have upon children. The recent case of LS v AS is another demonstration of this.
The case actually concerned a father’s application for the return of three children to Hungary, pursuant to the Hague Convention. The mother had abducted the children, who were aged fifteen, eight and two, to this country in June last year. She sought to defend the father’s application on two grounds. The first ground was that there was a grave risk that their return would expose the children to “physical or psychological harm” or otherwise place them in an “intolerable situation”. The second ground was that the children objected to returning to Hungary.
The case was heard by Mr Justice Hayden in the High Court. He found that it has “a striking and quite unusual feature”, in that many of the salient background facts were agreed or uncontentious:
“In particular, it is agreed that domestic violence has indeed characterised the marriage and characterised it throughout. It is agreed that on at least one occasion, the Police were called in relation to an incident of domestic violence against the mother. It is agreed that the children witnessed domestic violence and it is agreed that [the eldest child] was herself subject to violence by the father on two separate occasions.”
Further to this, the CAFCASS officer “concluded that what the children told him about their family life in Hungary is more likely to be true than not true, and that a return to Hungary could be potentially intolerable, because historically Mother has proved unable to safeguard them whilst in situ there.”
Mr Justice Hayden considered the evidence in the case and concluded “that these children are at grave risk of harm on their return to Hungary, primarily emotional harm but also physical. They have been provided here with a shelter from that abusive environment, which this mother has, despite her efforts, simply not been able to achieve in Hungary.” He went on:
“History, over many years in these children’s lives, shows that the protective measures the mother has sought to put in place in Hungary have been ineffective. The father is simply not constrained by the interventions of the State, he is to use the children’s own and I believe authentic language ‘unpredictable’, ‘violent’ and ‘tyrannical’.”
He then pointed out Dame Elizabeth Butler-Sloss’s remark in Re L:
“In domestic violence , where the child has memories of domestic violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appear to exist…”
Drawing everything together, Mr Justice Hayden found that the children faced a grave risk of harm if they were to be returned to Hungary. He also found that the two older children had expressed wishes and feelings that contemplated precisely the risks he had identified and that required to be respected. Accordingly, he refused the father’s application for the return of the children.
As I indicated at the beginning, the case stands as another example, if one were needed, of the impact that domestic violence can have upon children and how its effects can remain with them long after it is experienced or witnessed.
Photo by NobMouse via Flickr under a Creative Commons licence
