Ms Justice Russell, sitting in the Royal Courts of Justice, has refused a father’s application for the summary return of his two children to New Jersey, after they were brought to England by their mother in January.
The two children, now aged five and four, have German and American dual nationality, and were brought to England in January 2016 for a holiday with their mother and some of her family. The father brought an application for their return to the US on 14 March 2016, after the mother refused to return to America when scheduled in February.
The respondent mother alleges there was systematic domestic abuse from 2010, which became more severe after their second child was born in 2011, while the father dealt with his PTSD (after serving in the US military). She also claimed that the father had been violent towards the children, hitting the eldest child when he was a year old, and the younger when he was 2 months old.
In 2015, in front of the children, the father threatened to take his own life after seeing pictures of the mother with another man. The landlord intervened after he heard shouting, and the father was ordered to leave.
In October 2015, again in front of the children, the father attempted to destroy the mother’s belongings, and rape her. He was arrested by the police and admitted to hospital for a psychiatric assessment.
In his statement to the court, the father does not refer to these incidents specifically, but acknowledges being arrested and the psychiatric assessment.
The applicant’s case is such that he does not deny that domestic abuse occurred, but that it was mutual, ’caused by sexual jealousy’. On one occasion the applicant had his pregnant girlfriend living in the family home.
While the children and the respondent mother have been in England, the father was evicted from his apartment.
The judge referred to the case of Re E (Children) (Abduction: Custody Appeal) 2011, which set out some of the principles to consider in situations concerning application of the Hague Convention and international child abduction.
Article 13 (b) of the Convention reads that the person opposing the return of the children must establish that “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 case identified that the burden of proof would be on the respondent, who is seeking to rely on the exception in the Convention, namely that there would be a ’grave risk of harm’ to return the children. The respondent mother would need to prove the alleged violence, and the risk to the children must be sufficiently ’grave’, or otherwise place them ’in an intolerable situation’. Such harm to the children can be either physical or psychological, and suitable protective measures must be in place if the children were to be returned to their ‘home country’.
A Cafcass report was provided to the court on 11 May 2016 after the mother made the domestic abuse and violence allegations. The Cafcass officer interviewed both children, and found that the elder child was able to communicate clearly about his parent’s relationship and his current circumstances. The child was aware that his living in England was a result of his father hurting his mother, and was happy to remain in the UK and not return to his American School. The Cafcass officer expressed concern about the emotional difficulty he might feel if returned to the US, as both children saw their life in the UK as protection from the violence.
The Cafcass officer noted that both parents lack sufficient income and long-term accommodation in the US, and both would be in a financially vulnerable state if they returned to New Jersey.
The report concluded that it would be unwise for the father to have unsupervised contact with the children. It also considered that if the children were returned to the US, the State’s Child Protective Services should assess before allowing contact.
Ms Justice Russell considered that the incidents of domestic violence and abuse were of “a very serious and grave” nature, “at the severe end of any scale”. As a result Russell J concluded that such incidents would “constitute high risk indicators”, as the children had not only witnessed violence but been affected by it in terms of their emotional development.
Judge Russell gave serious consideration to the Cafcass report and the conclusion that there should only be supervised contact between the father and the children. Russell J concluded that supervised contact should continue until the children’s safety could be assessed and ensured whether in the UK or US.
The judge considered that to return the children would not expose them to a grave risk of “physical” harm, but would certainly expose them to a grave risk of “emotional” harm, and that their safety would be a concern. The judge was not satisfied that any long-term protective measures had been put in place in the US by the father, beyond the country’s general legal provisions:
"I do not consider that any or sufficient protective measures are in place, nor have sufficient steps been taken to put them in place and so these children would return to a situation where they would be at grave risk of emotional harm and returned to an intolerable situation and therefore I do not consider that I am bound by the provisions of the treaty to order their return and do not do so."
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