Neutral Citation No.  [2010] NIFam 19	Ref:     	STE8016	
			
Judgment: approved by the Court for handing down	Delivered:	22/11/2010	
(subject to editorial corrections)*			

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 ________

FAMILY DIVISION
 ________

Maria (A pseudonym) (Abduction: Grave risk of harm)
________

STEPHENS J

Introduction

[1]	This is an application by a father for:-

(a)	a declaration pursuant to Article 3 of the Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”) that the retention of his daughter, whom I shall call “Maria”, though that is not her real name in Northern Ireland, was wrongful and in breach of his rights of custody; and

(b)	an order pursuant to Article 12 of the Hague Convention that Maria be returned.

[2]	Maria was born in January 2007 and is now nearly 4 years old.  Her father is an Italian national.  Her mother was born in Northern Ireland but she has lived in Italy for some 16 ½ years.  Maria’s parents have never married.

[3]   I gave my oral judgment on Monday 22 November 2010.  I have anonymised this transcript of that judgment.  Nothing should be published which would identify the child or any member of her extended family.  Any report of this judgment should make it known that the name used is a pseudonym.  Prior to publication of this judgment on the Court Service website I afford the parties the opportunity of considering the pseudonym and if they consider it inappropriate to either suggest an alternative or to request anonymisation by use of initials.  If any party wishes to avail of this opportunity then the Office of Care and Protection should be informed in writing within one week.  If the Office is not so informed then the present pseudonym will remain.

[4]     The parties are requested to consider the terms of this transcript of the judgment and to inform the Office of Care and Protection in writing within one week as to whether there is any reason why it should not be published on the Court Service website or as to whether it requires any further anonymisation prior to publication. If the Office is not so informed within that timescale then it will be submitted to the Library for publication in its present form.

Representation

[5]	Ms McBride appeared on behalf of the father and Mr Girvan appeared on behalf of the mother.  I am grateful to both counsel for their clear and succinct written and oral submissions.

The factual background

[6]	In July 2000 Maria’s parents started to cohabit in Italy.  Maria was born some 7 years later.  There is a conflict of evidence as to when difficulties arose in the relationship between Maria’s parents.  The mother states that she suffered domestic abuse at the hands of the father from July 2000 to July 2010.  The father states that problems arose in the parties’ relationship in December 2009.  He stated that at that time he and the mother were living together in the same accommodation in Italy.  

[7]     The father presently works in a supermarket though he previously had a business of his own.  

[8]     The mother was employed in Italy as an English language teacher.   

[9]     The mother travelled to Northern Ireland on 22 or 23 December 2009 so that she could see her family in Northern Ireland.  The father states that it was agreed that the mother and Maria would return to Italy in early January 2010 but that it was not until 28 or 29 January 2010 that they did in fact return.  In any event regardless as to whether there was an agreement for an earlier return the mother and Maria returned on either 28 or 29 January 2010.

[10]	Lawyers were engaged by both the mother and the father in Italy.  Negotiations commenced between them in respect of the break up of their relationship.  At this time they were both with Maria living in the same accommodation.

[11]	In June 2010 discussion commenced as to the mother again going with Maria to Northern Ireland for a holiday.  It was agreed that she would go for a period of some 3 weeks.  She and Maria left on 9 July 2010 and accordingly were due to return to Italy on 30 July 2010.  The mother and Maria did not return on 30 July 2010.  Negotiations followed as to an extension of time for the mother and Maria to remain in Northern Ireland.  Those negotiations proved to be unsuccessful.

[12]	Unbeknownst to the father the mother commenced Wardship proceedings in Northern Ireland.  In early September 2010 she obtained a Wardship Order.  Upon service of those proceedings it became clear to the father that the mother had no intention of returning to Italy with Maria.  He disputes the jurisdiction of the courts in Northern Ireland.  He initiated these proceedings seeking a return order in respect of Maria.

The undertakings on behalf of the father

[13]	I set out in full the undertakings which the father has given in the course of these proceedings.  They are as follows.  

“The father gives the following undertakings which will be operative until these issues are resolved by the relevant court in Italy or the parties otherwise expressly agree in writing:-

(1)	The father agrees not to institute or voluntarily support any proceedings whether criminal or civil which might lead to a punishment of the mother in respect of the retention of Maria in Northern Ireland.

(2)	The father shall pay the sum of €1,000 per month for a period of 3 months commencing in November 2010 in respect of maintenance and accommodation costs to the mother.  Thereafter the father shall pay a sum of €400 per month to the mother in respect of maintenance.

(3)	The sums referred to in paragraph (2) above shall be paid by the father to his Italian lawyer on his lawyer’s undertaking to pay all monies received by him from the father to the mother when due and owing.

(4)	The first payment of €1,000 shall be paid by the father on or before 30 November 2010 to his Italian lawyer who shall then provide written confirmation of receipt of the said monies to his solicitors in Northern Ireland.  Those solicitors will forward this confirmation in English to this court and to the mother’s solicitor.

(5)	Upon the mother’s return to Italy the father will permit the mother to have primary care of Maria subject to the mother undertaking to give good, regular contact to the father.

(6)	The mother is at liberty to issue proceedings in Italy relating to the residence and care of Maria.

(7)	The father agrees not to harass or molest the mother.

[14]	As can be seen from those undertakings the father agrees that the mother is the primary carer of Maria subject to his having good regular contact.  This undertaking emerged during the course of argument before me in the following way.  It is now clear that the mother wishes to relocate to Northern Ireland with Maria.  I indicated a preliminary view during the hearing that the mother should be bringing a relocation application in Italy.  I was informed that in negotiations between the parties in Italy the father had sought to obtain the mother’s agreement to remain in Italy on the basis that it would only be in such circumstances that he would concede that she was the most appropriate person to be the primary carer of Maria.  I indicated that according to the laws and practice in Northern Ireland that was an incorrect approach and was not prioritising the needs of Maria.  The first question as to who should be the primary carer is separate and distinct from the second question as to whether the primary carer could relocate to Northern Ireland with Maria.  To try to combine the two questions in negotiations was putting undue pressure on the mother.  That analysis was accepted by the father and he concedes that the mother is the primary carer of Maria quite irrespective as to whether she remains in Italy or brings a relocation application in Italy.

[15]	The father’s qualification to his acceptance that the mother should be the primary carer of Maria, that is that there should be good regular contact, is accepted as being capable of fulfilment even if the mother and Maria were permitted by the courts in Italy to relocate to Northern Ireland.

[16]	I shall also say something about the father’s undertaking not to harass or molest the defendant.  Issues have arisen in this jurisdiction as to the father’s conduct in Italy.  This court has an expectation that if the father does not abide by his undertakings he will receive appropriate punishment and that safeguards will be put in place in Italy in such circumstances to protect the mother and Maria.

[17]	The criminal code in Italy provides according to paragraph 574 as follows:-

“Unless it entails a more serious offence, the person who abducts a child from the parent exercising parental responsibility or from the guardian and removes or retains the child abroad against the will of the holder of the parental responsibility or the guardian, thus preventing the latter to fully or partly exercise parental responsibility, shall be punished with 1 to 4 years detention.  Should the offence referred to in the above first sub paragraph be committed against a child who has attained 14 years and with the latter’s consent, the penalty shall be 6 months to 3 years detention.  Should the offence referred to in the above first and second sub paragraphs be committed by a parent against his/her own child the penalty shall entail the suspension from exercising parental responsibility.”

The father’s undertaking in respect of criminal proceedings has been expressly acknowledged in this court as including an obligation not to seek or to institute or to voluntarily support the imposition of any criminal sanction of any nature including all those that I have read out.

The issues for determination

[18]	Ms McBride contends on behalf of the father and Mr Girvan concedes on behalf of the mother that wrongful detention of Maria in Northern Ireland has occurred.  It was also accepted that the father had established that he has rights of custody in respect of Maria which he exercised and that Maria was habitually resident in Italy before her retention in Northern Ireland.  Mr Girvan on behalf of the mother relies on the Article 13(b) defence that is that there is a grave risk that Maria’s return to Italy would expose her to physical or psychological harm or would otherwise place Maria in an intolerable situation.

Legal principles in relation to Article 13(b) defence

[19]	There was agreement between counsel as to the legal principles applicable to an Article 13(b) defence.  At paragraph [112] of TB v. JB (Abduction: Grave Risk of Harm) [2001] 2 Family Law Reports 515 Lord Justice Law summarised the legal position as follows:-

“[112]     In summary, then, these following features of this jurisdiction are in my judgment inter dependent functions of each other –

(1)	The Convention’s policy is that substantive questions of a child’s welfare should be decided by the courts of the state of the child’s habitual residence.

(2)	A child unlawfully removed from the state of habitual residence will therefore be promptly returned unless it is shown exceptionally that an order of return would create grave risk of intolerable harm to the child.

(3)	The decision whether such grave risk is made out has to be assessed summarily else –

(a)	the policy stated at (1) might be undermined; and

(b)	otherwise the parent left behind in the home jurisdiction is potentially put to unjust disadvantage in seeking to make a case for the child’s return.

(4)	The consideration set out at (3), the words of Article 13(b) and the exceptional nature of what has to be demonstrated show that “clear and compelling evidence” (per Ward LJ, Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, 1154) is required if the obligation to return is in any particular case to give way in light of Article 13(b).”

[20]	In addressing those questions as to whether there is clear and compelling evidence of a grave risk of intolerable harm to Maria I seek to apply in relation to the courts of Italy what Arden LJ stated in relation to the courts of New Zealand at paragraph [98] and [99] of TB v. JB (Abduction: Grave Risk of Harm).  Those paragraphs are as follows:-

“[98]     In this context, in my judgment the court is entitled and bound to take the view in the absence of evidence to the contrary that the courts of New Zealand can make appropriate protective orders, extending if necessary to a full prohibition of any form of contact or entering the area where the family live, and can effectively punish any non compliance.  (In this country if there was persistent non compliance there might be a custodial sentence.)  The position is also assisted by the father’s agreement not to seek compliance with the order until the end of January 2001 which affords the mother an opportunity to apply for protective measures in advance.  Moreover the decision of this court in Re C, (A child) (unreported) 1 November 1999, establishes that the court continues to have control over the return of the children until implementation of the order.  While I would not wish to give encouragement for any further application, I would add this.  Should the mother in this case adduce proper evidence before implementation takes place which explains to the satisfaction of the court that, contrary to the basis on which I proceed, the protection of the courts in New Zealand does not afford either in practice or in theory adequate protection from Mr H to the children to be returned or to herself (assuming she continues to be their primary carer), then I for one would consider that this court has adequate jurisdiction to entertain an application for the review of the order for return.  That jurisdiction would extend to requiring further undertakings from the father that appeared to the court to be appropriate.  Before taking this step the mother should of course consider all options reasonably available to her and seek from the father any assistance that the father can provide.  The application will be on notice to the father.  

[99]     In my judgment it is reasonable to expect the mother to make all appropriate use of orders of the New Zealand courts for her protection and that of her children.  Indeed there is a letter in the bundle which fortifies the assumption which the court is entitled to make from a firm of lawyers to Ms JF, another psychologist, stating that it would be possible for a representative to apply for a protection order on the mother’s behalf.  That application would be made on the grounds that the mother is unwilling or unable to apply for the protection that she needs.  In my judgment that factor can be taken into account.”

Whether clear and compelling evidence that a return would create grave risk of intolerable harm to Maria

[21]	The mother states that she suffered domestic abuse at the hands of the father from July 2000 to July 2010.  She states that this took the form of “physical abuse, emotional abuse, verbal abuse, financial abuse and finally children (sic) where the father was trying to amongst other things to turn Maria against her and threatening to take her away from her.”  She also states that the father made a sexually inappropriate remark thus she states.  

“When (Maria) was approximately 5 months old she had a habit of sticking out her tongue and on one occasion the respondent advised me “I hope she uses her tongue better than you do”.  This caused me great concern as around this time also the respondent also wanted to take over the responsibility for Maria’s bathing.  This seemed to bother Maria also as she was then reluctant to have a bath.” 

[22]	Further allegations are set out by the mother at paragraph 20 of her statement as follows:-

“So from the beginning of February when I in my complete naivety told the plaintiff I wanted to leave him he began a campaign of animosity, of terror, of total antagonism towards me.  This in itself although intimidating was not the worse thing to contend with.  What was very worrying was that now he wanted to directly involve Maria in his abuse of me and was at the same time abusing her.  His animosity knew no bounds.  In my defence and to escape his incessant attacks on me I would run into the bathroom or pleaded “stop, keep quiet.”  Maria when faced with this aggression and the aggressor would also say “stop shouting, keep quiet.”  This absolutely infuriated the plaintiff.  He couldn’t see that his little daughter had feelings of her own and that she genuinely didn’t want her parents to be arguing.”

[23]	There is a certain amount of detail given by the mother but the sweeping allegation of domestic abuse from July 2000 to July 2010 is in the main unparticularised.  There is not the degree of particulars of specific incidents that would assist in establishing compelling evidence.  There is no corroboration of the allegations of physical abuse for instance by attendance at hospital or with a general practitioner or by reference to the police being called.  

[24]	Three incidents are referred to by the mother.  One incident is alleged to have occurred in March 2010.  She states at paragraph 23:-

“In March this year the plaintiff used violence against me in front of Maria.  I had been on the land line to my mother.  This was forcibly removed from me.  I was then pushed hard into a corner and tackled for my house keys and mobile phone.  He effectively imprisoned me.  He then called the police and told them there was a male friend of mine outside the apartment door and he wanted him to be sent away.  When the police came they were not in any way interested in my episode of abuse.”

[25]	No where in that account does the mother describe precisely how she was pushed or for instance whether she fell or whether she sustained a bruise or any injury.  There is no evidence that she required to seek or obtain medical advice or to treat herself for any physical injury.  A different complexion is put on this incident by the father.  He states at paragraph 18 as follows:-

“I refer to paragraph 23 and deny its contents.  The defendant said that her boyfriend ~X~ was coming round for tea and then coming to stay at weekends so they could decide whether they wanted to live together. I said that he was not coming into the house and took the keys off the defendant.  I denied that I used any force.  When ~X~ arrived at the door I told him to leave.  I then called the police.  At this stage ~X~ had left and the police informed the defendant that she could not bring people into the house without my consent.  I deny that the defendant was ever the victim of abuse as alleged.  At no stage did she ever report abuse, attend a general practitioner in Italy or otherwise contact Social Services or other relevant professionals.  Abuse was never raised in correspondence between solicitors post separation as it was not a feature of our relationship.”

[26]	I do not consider there to be clear and compelling evidence substantiating that specific incident in March 2010. 

[27]	There is another incident which is alleged to have occurred on 9 July 2010.  This is described in paragraph 22 by the mother as follows:-

“The day we left Italy 9 July there were several arguments.  The plaintiff was trying to make sure his power would be felt and to instil fear in us before we left.  He was successful on both counts.  Maria at one point asked him to stop shouting to keep quiet.  He told her sarcastically “You keep quiet.  You wont even have to see me for 3 weeks”.  He stepped up the aggression while I was waiting to check in telling me all the while if I didn’t look at him respectfully he would take Maria and return home with her and allow me to travel on my own.  Shortly before he went through to the gate he picked her up to show me he meant business while I was holding on to her hand.  I didn’t know what was happening.  He really hurt her arm by taking us unawares.  He tried to make a scene.  He again blamed me saying I should have let go of her arm.  When it was time for him to say goodbye I couldn’t look at him – I was terrified he would do something terrible to me and run off with Maria.  The fear is as palpable now as it was in that moment.”

[28]	The response by the father to these allegations is not satisfactory.  He baldly denies the allegations but does not attempt to set out what did occur.  However though the scene, if it occurred, was extremely unpleasant I do not consider that any incident such as that amounts to a grave risk of intolerable harm to Maria particularly bearing in mind that the mother can seek protective orders from the courts in Italy and also has the benefit of the father’s undertakings to this court.

[29]	The third incident is alleged to have occurred on 18 May 2009 when the father pushed the mother.  Again there is no description of how this occurred, with what force and with what if any result.  Such lack of detail does not compel towards a conclusion on the evidence. 

[30]	Indeed the mother herself goes on to say in relation to this and other incidents

“Only when I returned home to Northern Ireland were professional people able to tell me that I and Maria had been victims of domestic violence.”  

To say as she does that it is only in hindsight and with the benefit of advice from others that she became aware that she and Maria had been victims of domestic violence is in this case a strong factor militating against the proposition that there is clear and compelling evidence of a grave risk of intolerable harm to Maria.  I say in this case because it is not decisive.  Personal circumstances are infinitely variable.  However in this case it is highly unusual given the mother’s background and circumstances for her to say that she and Maria have in the past been subjected to intolerable harm but that she did not then appreciate that she was the victim of domestic violence or exposed to such intolerable harm.

[31]	There is evidence in this case of harm but I do not consider it to amount to clear and compelling evidence that a return would create a grave risk of intolerable harm to Maria.  I come to that conclusion for a number of reasons:-

	(a)	The lack of particularity in the evidence of the mother.

(b)	The lack of corroboration, for instance in relation to physical violence by attendances at a general practitioner or hospital.

(c)	In relation to the allegation of physical abuse the lack of any allegation of physical injury by the mother.

(d)	The evidence of the father which denies the allegations being made by the mother.

(e)	The protection of the undertakings given to this court by the father.

(f)	The ability of the mother to apply to the courts in Italy for protective orders if they are needed.  

In view of the lack of such compelling evidence I do not consider that the case falls within Article 13(b).

Conclusion

[32]	I order the return of Maria to Italy on or before Monday 6 December 2010 and I approve the form of the draft order which has been submitted to me on behalf of the father.  

[33]	Finally I make it clear that the affidavit in reply from the father has not been sworn.  Return will not occur until the father provides a sworn affidavit.  Further prior to the return of Maria the undertakings that have been given to this court should be formally signed by the father.

[34]	I also direct that all the papers in this case be made available to the courts in Italy together with a transcript of this ruling.