Court dismisses appeal against return order

Family Law|July 23rd 2015

The High Court has dismissed a mother’s appeal against an order that she return her 11 year-old daughter to Lithuania.

The family concerned were all from the Baltic state and lived in the country until October 2012. The mother has three children, the older two by a different father to the 11 year-old, who was referred to in legal judgements as ‘E’. Her parents never married but were involved in a relationship of “relatively long duration”.

In 2008 the father served time in prison for fraud. The mother and E visited him there, but when he was released the father claimed that “other men started coming to her door at night causing problems”, so he took E away with him to live elsewhere. This situation continued until April the following year when the mother made an application to see E. She claimed that the father had threatened her with a knife before leaving with E, who was in tears and did not want to go.

She also claimed that the father had prevented her and her family from seeing E and also alleged that the father had spent time in mental institutions. However, when the Lithuanian equivalent of a social worker spoke to E, she told him that he was happy living with her father and did not like the mother’s new partner. A contact schedule was drawn up allowing the mother to see E every weekend.

Then she moved to the UK, leaving E with the father. She claimed to have done so to find work after her business went bankrupt.

Later, the father agreed to let E spend summer holidays with her mother in England. But in August last year, an “unpleasant” confrontation took place outside the mother’s flat. The father claimed that E had telephoned him in tears saying her mother would not send her back to Lithuania. The mother and father then spoke and she told him that she could not afford to pay the return fares so it was agreed that the father would collect E.

When he reached her flat, however, a violent fracas occurred between the father and the mother’s new partner during which CS gas was used. The mother claimed that the father had tried to drag E out of the flat, while he alleged that she was restrained from leaving. The police were called and despite noting that E appeared to be trying to leave with her father, shouting ‘I want my Daddy’, they returned her to the mother and arrested the father. He was interviewed the following day but no charges were brought.

At the Court of Appeal, Lady Justice Black noted subsequent events, referring to the Judge who initially heard the case:

“Hogg J observed that no doubt feelings were running high in the mother’s household after the incident. The father communicated with the mother in terms that the judge classed as “unfortunate” and “not happy reading“.”

When a social worker visited the mother’s household E appeared tearful and still emotionally affected by the confrontation.

Lady Justice Black explained:

“What E said to the social worker was neither wholly helpful to the mother nor wholly helpful to the father. For example, she said that on the day of the incident “she was ready to follow her dad as she was dragged by the neck”. She mentioned him screaming on the phone and said it was frightening. However, she blamed the incident on her mother’s partner because he tried to fight her dad and her dad could not take it, and she said that it was upsetting not to talk to her father since the incident, her mother having stopped all means of communication with him.”

The father launched proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of his daughter. His application was granted by Mrs Justice Hogg in March this year.

The mother unsuccessfully argued that E objected to the return and that under the terms of the Convention, her views should be taken into consideration. She also argued that a return would expose E to risk or place her in “an intolerable situation”, another allowable exception.

Her Honour Judge Hogg declared, that while E objected to a return, she had been subjected to emotional pressure by the mother and her team.

The mother appealed, arguing that Judge Hogg had not properly or fully considered the circumstances. But the Court of Appeal was not convinced.

Lady Justice Black declared:

A wide range of factors came into the judge’s evaluation in addition to influence…a number of other matters which were relevant to the judge’s exercise of discretion following the child’s objections exception having been established, including the fact that E is suffering psychologically now, the question of contact, the fact that her home is in Lithuania , the fact that the father may have upset her on the telephone or on Skype and needs to consider the way in which he approaches things, and the fact that the Lithuanian social services would be informed and the Lithuanian court involved on her return.”

Re K is available here.

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