The High Court has ruled against a father’s application for the return of his children, due to evidence that he had been violent towards them.
The case concerned a US father and a German mother. They lived in New Jersey in the United States and had two boys, now aged five and four, who hold dual German and American citizenship.
The relationship was a troubled one, with reports of infidelity and domestic violence. The mother claimed the father hit both the children while they were still very young, and that he was violent towards her as well., slapping her and pulling her hair, sometimes in front of the children.
The violence later escalated, she claimed and he had sexually assaulted her. She attributed his outbursts to post-traumatic stress disorder (PTSD)following time spent in the military.
The father acknowledged suffering from PTSD and receiving treatment, but insisted that it was “a minor difficulty which has no effect on his behaviour in the home.”
In one incident last year, the man held a knife to his own throat and threatened to kill himself after seeing a photo of the mother with another man. She screamed and the family’s landlord intervened, telling him to leave.
Later he attempted to assault her again and trash her belongings. He was arrested and sent for psychiatric assessment.
In January this year, the mother and two children flew over to Britain for a holiday. They were scheduled to return the following month but did not do so. After an extended exchange of emails, the father applied in March for their immediate return, under the standard international treaty the Hague Convention on the Civil Aspects of International Child Abduction.
The mother objected, under Article 13 of the Convention. Initially her defence rested on both clauses 13(a) and 13(b). The former is primarily a claim that the other parent consented to the child’s removal, while the latter is the assertion that returning the child would expose him or her to “physical or psychological harm or otherwise place the child in an intolerable situation”. However, the later abandoned her claims under 13(a), after accepting that she had travelled to the UK for a holiday and to visit her mother.
In the High Court, Ms Justice Russell noted:
“…taken as a whole, the evidence of acquiescence is equivocal at its highest.”
Since the mother’s decision to remain in England, the father has been evicted from the family’s apartment. He claims he would leave this second apartment if the mother and children returned to the United States, but the terms of the lease and differing tenancy agreements, one of which was in the name of another woman, cast doubt on the situation. According to the Judge:
“…it does call into question whether there is in fact secure accommodation at the applicant’s disposal.”
She ruled against returning the children, noting that:
“The situation that the children were in was an intolerable one; they were exposed to frequent domestic abuse and to the emotional volatility and anger of their father who had frequently assaulted their mother in their presence, affecting them and affecting their emotional well-being and, in all likelihood, affecting their emotional development; [one of the children] told the Cafcass Officer his father kept hurting his mother. [The father] denies assaulting the children …I am not in a position to make any findings but these allegations by [the mother] (of [the father’s assaults on the children), if true, would constitute serious assaults on very young children which could only be considered to be wholly intolerable.”
In addition, said the Judge, the mother had “very limited financial resources” and no family support and therefore:
“…this level of financial vulnerability in a case such as this, directly affects the children, and adds to the risk of harm and to the intolerability of the children’s situation.”
Read DM v KM here.