HIGF3239								11 July 2000

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

FAMILY DIVISION

 ________ 

2000/6CA

BETWEEN:

SV

Plaintiff;

-and-

JV

Defendant.

________

HIGGINS J

	This is an application under the Convention on the Civil Aspects of International Child Abduction 1980 (The Hague Convention) as enacted by the Child Abduction Act 1985, for the return to the island of Corfu in the Republic of Greece, of DV (D) the son of the plaintiff and the defendant.  The defendant is from Northern Ireland and met the plaintiff, a Greek national, whilst on holiday in Corfu in May 1990.  A relationship developed between them.  After her return to Northern Ireland she discovered she was pregnant.  She returned to Corfu in August 1990 and resided with the plaintiff and his family.  
In October 1990 the plaintiff and the defendant moved to Athens where D was born on 14 January 1991.  In March of that year they married and shortly after returned to Corfu where they continued to reside until 1999 when the circumstances giving rise to this application occurred.  
The plaintiff was employed recently as a long distance lorry driver and the defendant was the main carer of their son.  There is a suggestion in the papers that D is not the biological child of the plaintiff.  The plaintiff’s name was not recorded in the birth certificate.  However, in a document dated 31 July 1996 the plaintiff and the defendant stated on oath that he is their natural son.  Whatever be the true biological status D has been treated and acknowledged as a child of the parties and their family unit.  
Life in Perivoli in Corfu was simple and unsophisticated and the parties shared a house with the plaintiff’s family.  There are allegations by the defendant of criminality and drug abuse by the plaintiff and that his mother is an alcoholic, both of which are denied.  There are allegations of violence by the plaintiff against the defendant, one occasion of which is admitted by the defendant.
In 1996 D was airlifted to hospital in Athens suffering from the affects of an ingestion of a drug.  He was seriously ill for a week.  The plaintiff alleges he took or was given an overdose of a medically prescribed drug.  The defendant implies the drug was an illegal substance.  In June 2000 D alleged to a social worker who interviewed him that his father had given him “something white” which made him sick.
The plaintiff’s mother was a source of friction between the parties and it is alleged a formidable but unstable personality within the household.  The defendant alleges that late in 1998 she became aware of inappropriate touching of D by his grandmother.  This led her to decide she should leave Corfu.  In June 2000 D alleged to the social worker that his grandmother had “sucked his willy” and that this happened on most days.  He said he told her not to do it, but she was too fat to push away.  His mother also made these allegations to the social worker. 
In her affidavit the defendant alleges that D was terrified of his grandmother’s violent outbursts and tantrums and of her repeated allegations against her husband.  The plaintiff denies that his mother is alcohol dependent, though accepts she does drink on a daily basis.  He denies she was threatening or abusive, but accepts she may have an abrupt personality and shout a bit, but that D was not terrified of her.  When interviewed by the social worker D was reluctant to talk about Greece and his family there.  He said he did not want to talk to his father because he did not like him.  His reason for saying this was because he hit and kicked his mother and also on several occasions punched himself.  He said he was frightened of having to go back to Greece.  His mother told the social worker and he confirmed that recently he had been wetting and soiling himself.  
In her affidavit dated 3 April 2000 the defendant stated that D did not wish to return to live in Corfu and that he does not wish to live with his father whom he describes as a “bad man”.  
Towards the end of 1998 the defendant was unwell and decided to return to Northern Ireland for medical treatment.  She alleges that she had on numerous occasions in the past told the plaintiff that she intended to settle permanently in Northern Ireland.  The plaintiff acknowledges in his affidavit that she had on occasions stated that she wished to settle in England.  The defendant alleges that in December 1998 she told the plaintiff she did not intend to return to Corfu whereupon he took all her travel documents which included D’s birth certificate and school documents.  The plaintiff denies that he confiscated the documents, but states that he did not allow her to take these documents with her.  The defendant alleges simply that she managed to get the documents back and travelled to Northern Ireland on 12 January 1999.  The defendant alleges that it was agreed between them that the defendant and D would travel to Northern Ireland for a number of weeks and then return probably in or around March 1999.  He never agreed to her leaving Greece with D to reside in Northern Ireland on a permanent basis or to D remaining in Northern Ireland after March 1999.  In March 1999 the plaintiff alleges the defendant told him by phone that she had missed her return flight and would have to buy a new ticket.  The plaintiff asserts that two days later her mother told him she had left for Greece.  However, she did not return.  The parties are in dispute about the level of contact by the plaintiff with the defendant or her mother during this period.  The plaintiff further asserts that in April 1999 he was told by the defendant’s mother that the defendant did not wish to return to Corfu.  He then had difficulty contacting the defendant as her family refused to give him information as to her or D’s whereabouts.  When a social worker called at the family home in May 2000 the defendant’s mother told the social worker that the defendant and D where living in the Castlewellan area, but was unable to provide an address.  The defendant’s solicitors were also reluctant to release details of the defendant’s whereabouts or address to the Central Services Agency, the solicitor’s representing Newry and Mourne and Health Social Services Trust.  On 3 May 2000 the court had directed Newry and Mourne Health and Social Services Trust to report on the child and in those circumstances the defendant’s mother and solicitors should have co-operated with Social Services.  
For some reason, not explained, the plaintiff believed his wife and son would return to Corfu in the summer of 1999.  He took no legal action during this period as he believed this might make matters worse.  In addition he was working outside Greece and it was difficult to do anything as he did not know his wife and son’s whereabouts.  In or around September 1999 he asked his sister to contact a lawyer in Corfu.  His advice was that proceedings would have to be commenced in Corfu.  Later the plaintiff learnt of a lawyer in Athens who specialised in children’s cases with whom he finally made contact on 12 December 1999.  Until then, he avers, he was unaware of the Hague Convention.  On 23 December 1999 Mr Kydonief, his Athens lawyer, applied for legal aid in Northern Ireland under the Hague Convention.  (Parties are entitled to legal aid automatically under the Hague Convention).  
On 24 February 2000 a summons by the plaintiff against the defendant issued out of the High Court in Northern Ireland in which the plaintiff sought:
(i)	a declaration that the retention of D in Northern Ireland was wrongful and in breach of the plaintiff’s rights of custody pursuant to Article 3 of the Hague Convention, and 
(ii)	an order pursuant to Article 12 of the Convention that D be returned to Greece.  
	The plaintiff has averred that he is prepared to give up his employment and devote himself full-time to the care of the D.  
	Article 4 of the Convention as enacted by Schedule 1 to the Child Abduction and Custody Act 1985 states:
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights.  The Convention shall cease to apply when the child attains the age of sixteen years.”

	D is under 16 years of age and it is accepted that he was habitually resident in Greece.
	Article 3 of the Convention states:
“The removal or the retention of a child is to be considered wrongful where –

(a)	it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b)	at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

	It is conceded on behalf of the defendant that the plaintiff has rights of custody which he exercised and that the retention of D in Northern Ireland was in breach of the plaintiff’s rights of custody.  It is not argued by either party that D’s removal from Corfu was other than with the plaintiff’s consent.  
	Article 12 of the Convention states:
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested state has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

	Thus if the retention of D was wrongful and the proceedings commenced within one year of the date of his retention he should be returned forthwith to Greece.  On what date was D wrongfully retained?  Wrongful retention is an issue of fact.  It can be a unilateral decision by a party – see Re S (minors) (child abduction: wrongful retention) 1994 1 FLR 82 – and does not depend upon communication by one party to the other.  It is a reasonable inference from all the evidence that the mother was for a number of reasons unhappy living in Corfu and was of the view that if she could get out of Greece with D and back to Northern Ireland that she would not return to Corfu.  It is further reasonable inference which I draw that when she returned to Northern Ireland on 12 January 1999 she had decided that she would not return to Corfu with D.  Therefore on that basis the proceedings were commenced after the expiration of the period of one year from the date of the wrongful retention.  The question then arises whether D is now settled in this new environment.  The time referred to by the word “now” is the date of commencement of the proceedings namely 24 February 2000.  By then D was over one year in Northern Ireland, had commenced school, made new friends, attends a youth club and hopes to attend a local summer scheme.  I find that it has been demonstrated that D is now well settled in his new environment in Northern Ireland and that the degree of settlement is significant.  Therefore, the court has a discretion whether to return him to Greece from which country he has now been absent for over 18 months – a not insignificant period in the life of a nine year old boy.
	The defendant also relied on the provisions of Article 13 which state:
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

(a)	the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b)	there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

	The first defence raised under this Article is that the father acquiesced in the retention of D in Northern Ireland.  I find nothing in the evidence or any reasonable inference drawn from it, which proves that the plaintiff at any time acquiesced in the retention of D in Northern Ireland.  There has been delay and the reasons therefore are not always consistent or capable of resolution, but nonetheless they do not equate with or prove acquiescence on the part of the plaintiff.
	The next defence put forward is that to order the return of D would place him at a grave risk of physical or psychological harm or otherwise expose him to an intolerable situation.  The onus is on the defendant to establish this defence and the burden is a heavy one.  The risk of physical or psychological harm or exposure to an intolerable situation must be a weighty and substantial one and not a mere trivial one – see Re A (a minor) (Abduction) 1988 1 FLR 365.
	Various allegations are made, some more serious than others, some several years ago and others unsupported by other evidence.  A number of matters stand out for consideration:
(i)	The allegation of violence by the plaintiff towards the defendant.  The plaintiff admits one incident albeit under provocation and in self-defence.  D told the social worker that the plaintiff “hit and kicked” the defendant and also that the plaintiff had punched D himself.  
(ii)	The allegation that the paternal grandmother is alcohol dependent.  The plaintiff admits she drinks everyday (though that may be a custom in Corfu).
(iii)	The allegation that the paternal grandmother has an unstable personality.  The plaintiff admits that she has an abrupt personality and shouts a bit.  
(iv)	The allegation about drug involvement or abuse.  It is common case that D was hospitalised after ingesting drugs of some form.  It is not without significance that D told a social worker that his father gave him “something white” which made him sick.
(v)	The allegation that his paternal grandmother touched him inappropriately.  The defendant makes this allegation.  Such allegations are easily made and often difficult to refute.  They can also be invented.  The allegation is made against a person who in normal circumstances would be an unlikely candidate.  A father or grandfather might fall into that category.  Significantly the child makes an allegation of indecency and that allegation is against the same unlikely candidate.  The allegation by D is a specific one using graphic and more adult language.  It is not a single allegation by him and he gives a logical reason why he could not resist it.  Yet for all its specificity there is little detail other than it happened daily.  If it is suggested that the child made this up or repeated it at the mother’s request it is a very specific allegation against a particular and significant family member.  There is no evidence that D is capable of making up such an allegation against his grandmother.  He makes no allegation against his grandfather yet he told the social worker he wished him to be dead also.  There is no evidence that the defendant, his mother, is someone who would easily make up such an allegation, though that is not an answer in itself.  
	I am left with a strong impression that this was not a happy household for the defendant and D for a number of reasons.  Neither wish to return to Corfu and have expressed fears about doing so.  Are those fears genuine, and if so why are they so afraid.  The defendant is receiving counselling from a member of a community mental health team under the guidance of a well known psychiatrist.  D has confirmed recent enuresis and encoprecis which often results from anxiety.  These factors tend to confirm the impression which I have gained about this household.  Recognising as I do the heavy burden on the defendant the matters to which I have referred collectively satisfy me that there is indeed a grave risk that to return D to Corfu would expose him to physical or psychological harm or place him in an intolerable situation.  That is not to say that the allegations are true, merely that the evidence adduced demonstrates the grave risk which is required for this defence under Article 13.
	The third defence relied upon under Article 13 is that D objects to being returned and that he has reached an age and maturity at which it is appropriate to take account of his views.  In her affidavit the defendant has expressed D’s views that he does not wish to return to Corfu.  Less weight can be attached to such views expressed by D’s mother.  In his interview with the social worker D appears to have expressed his views very clearly.  When asked if there was anything worrying him, he replied that he was frightened of having to go back to Greece.  Later when asked to state three wishes, his first wish was not to return to Greece.  Equally clearly he stated he did not want to talk to his father as he did not like him.  The possibility of coaching requires to be recognised though the social worker found him quite withdrawn when speaking about Greece.  He is now 9½ years of age.  I consider that in all the circumstances he is of an age and maturity that the court should take account of his views which I do.
	The court is not bound to order the return of a child if one of the defences in paragraph (a) or (b) of Article 13 is established and where a child of sufficient age and maturity objects to being returned the court may refuse to order his return.  Thus in such situations the court has a discretion whether or not to order the child’s return.  What factors should the court consider in determining whether or not to order the return of a child when a defence under Article 13 has been made out.  In her well marshalled skeleton argument Miss McBride, who appears on behalf of the plaintiff, has set out clearly the type of factors to which the court should have regard.  They are -
(i)	the purpose and philosophy of the Convention which requires and anticipates the summary return of children wrongly removed or retained from the country of their habitual residence and any frustration of that if a Return Order is refused;
(ii)	any delay in bringing the proceedings and whether, in the time which has passed, the child is settled in his new environment;
(iii)	the emotional effect on the child if returned;
(iv)	the situation which would await the defendant if D was returned;
(v)	the choice of forum available;
(vi)	the possible outcome of substantive proceedings relating to D.
	Those are all relevant factors in this case and require to be balanced together.  Having done so the conclusion I am driven to under both Article 12 and Article 13 is that a Return Order should not be made and I refuse the application.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

FAMILY DIVISION

 ________ 

2000/6CA

BETWEEN:

SPIRIDON V

Plaintiff;

-and-

JANE V

Defendant.

________

J U D G M E N T
O F
HIGGINS J
________