Department of Community Services & Frampton

[2007] FamCA 450

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & FRAMPTON [2007] FamCA 450

FAMILY LAW - CHILD ABDUCTION - Hague Convention – Application seeking return of child to Scotland pursuant to Hague Regulations – Habitual Residence

FAMILY LAW - CHILD ABDUCTION – Hague Convention –  Application seeking return of child to Scotland pursuant to Hague Regulations – Acquiescence

FAMILY LAW - CHILD ABDUCTION – Hague Convention – Application seeking return of child to Scotland pursuant to Hague Regulations – Child’s exposure to psychological harm and/or an intolerable situation

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Department of Health and Community Services, State Central Authority versus Case (1995) FLC ¶92-629

Department of Child Safety & Carter [2006] FamCA 1465
In re H and Others (Minors), [1997] 2 All ER 225

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Ms Frampton

FILE NUMBER: SYC 1445 of 2007

DATE DELIVERED: 18 May 2007

PLACE DELIVERED: Wollongong

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 27 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

COUNSEL FOR THE RESPONDENT: Mr Hill

Orders

1. The Application issued by the Director-General of the Department of Community Services on 1 March 2007 be dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1445 of 2007

Director-General, Department of Community Services

Applicant

And

Ms Frampton

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Director-General of the Department of Community Services in his capacity as the delegate of the State Central Authority under the Family Law Act (Child Abduction Convention) Regulations. The application seeks the return to Scotland of the child (a female) born on 20 February 2002.

2. The respondent mother opposes the return of the child on four grounds.  Those grounds are as follows:

   1.The child did not habitually reside in a Convention country immediately before the child’s removal to or retention in Australia (Regulation 16(1A)(b)).

   2.The father acquiesced in the child being removed to or retained in Australia (Regulation 16(3)(a)(ii)).

   3.The return of the child to Scotland would expose the child to psychological harm and/or place the child in an intolerable situation (Regulation 16(3)(b)).

   4.The return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

3. None of those grounds are conceded by the Director-General.

Background Facts

1. The father was born in September 1958 in Scotland and is 48 years of age.  The mother was born in February 1978 in Kenya and is 29 years of age.  In March 2000 the mother entered the United Kingdom on a visitor visa.  In April of that year she commenced a relationship with the father.

2. In September 2000 the mother’s visitor visa expired.

3. The mother and father married in the United Kingdom in February 2001.  The child, was born in February 2002 in Scotland.  In July and August 2003 the mother alleges the father was violent to her.  In August 2003 the parents separated with the mother and child leaving the family home.

4. In February 2004 the parents reconciled but only for about a month.

5. In August 2004 the father commenced parenting proceedings in Scotland.

6. On 19 August 2004 the father obtained an ex parte temporary residence order for the child.  That order was reversed on 9 September 2004.

7. In March 2005 the mother filed for divorce.

8. On 31 May 2005 the Home Office delivered a decision rejecting the mother’s further application to stay in the United Kingdom.

9. On 6 April 2006 the mother and the child travelled to Kenya.

10. On 7 April 2006 the mother notified the father she and the child were in Kenya.

11. On 11 April 2006 the mother lodged an application to return to the United Kingdom under the “Fresh Talent:  Working in Scotland Scheme”.

12. On 25 April 2006 the mother’s application to enter the United Kingdom was rejected.

13. On 14 August 2006 the mother travelled to Australia.  She had obtained work with the C Hospital who sponsored the mother under a 457 visa.

14. On 22 October 2006 the mother brought the child to Australia after obtaining a visa for her.

15. On 23 October 2006 the mother notified the father that the child was in Australia with her.  On 1 March 2007 the Director-General lodged the application in these proceedings.

The mother’s defences

1. The child did not habitually reside in a Convention country immediately before the child’s removal to or retention in Australia (Regulation 16(1A)(b))

1. The father acquiesced in the child being removed to or retained in Australia (Regulation 16(3)(a)(ii)).

The Mother’s Submissions

1. The mother was required to leave the United Kingdom.  She did so and travelled back to her homeland Kenya.  She made an application to return to the United Kingdom to reside and to work there.  That application failed and at that point the mother was resigned to a habitual residence in Kenya.  It is the mother’s case that prior to her travelling to Australia she was a habitual resident of Kenya.

2. The mother submits that the habitual residence of the child immediately before she moved to Australia was in Kenya.

3. The Regulation uses the following words, “(b)  the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia;  and”.

4. The mother says that Kenya is not a convention country.  That is conceded by the Director-General.  She says consequently the removal of the child to Australia was not a wrongful removal within the meaning of the Regulations.  Consequently it is submitted that the application must fail.

5. It is submitted by the mother that if the removal of the child from the United Kingdom to Kenya was without consent and wrong then the father acquiesced to the child remaining in Kenya as set out on page 65 of the bundle (paragraph 82).  This paragraph recites a conversation between the mother and the father.  The mother was seeking the father’s participation in having their divorce dealt with expeditiously so that the mother might re-marry.  She was proposing to re-marry her partner, Mr N.  Mr N is a resident of the United Kingdom.  The mother’s proposal was that if she was able to marry her partner then she would be able to settle permanently in the United Kingdom.  The mother reports that the father said he was not going to sign divorce papers unless she sent the child back to Scotland.  The mother adamantly opposed that course of action, that is, being separated from the child.  The father’s final response was, “I am not signing any divorce papers.  Enjoy your life in Kenya.”  It is submitted by the mother that those words, “Enjoy your life in Kenya”, are identical in meaning with the phrase, “Well you stay and live in Kenya then”.  The mother contends that it was implicit in that statement that the father was referring to the child as well.  In other words, he was effectively washing his hands of the mother and the child.

The Director-General’s Submissions

1. The Department argues that the term “habitual residence” is connected in a way with “acquiescence” because the status of a child’s residence is reflected in the status of the parental residence.  It is submitted by the Department that the mother was not deported from the United Kingdom.  It is conceded that she was asked to leave.  She did not receive a notice of deportation.  She says that she was advised to stay in Scotland notwithstanding the notice of the Home Office advising her of her failed application and requiring her to leave.  The Director-General said the mother chose to leave rather than being deported.  She left in order to make another application to return to the United Kingdom from Kenya.

2. It is submitted that the mother never abandoned her habitual residence in Scotland.  Evidence of this is found in her application made in Kenya to return to Scotland under the “Fresh Talent:  Working in Scotland Scheme”.

3. It is conceded that when the application of the mother to return to Scotland was refused she then became a habitual resident in Kenya.  It was put that not all the doors were locked to her;  she was seeking a divorce in order to apply for a spouse visa and return to the United Kingdom with him.

4. The affidavit of Ms P provides details of the type of visa the mother could apply for.  The father has offered to help financially however there is no evidence of his capacity.

5. Taking into account the “settled purpose” test it is submitted the doors of the United Kingdom were not locked to the mother.  It was submitted that the mother cannot by her sole action of removing the child from Scotland change the child’s habitual residence from Scotland to Kenya or any other place.  That could only be achieved in the case of the father having consented to or acquiesced in the move.  It is submitted that if the father has acquiesced then there may be substance in the mother’s argument.  The mother relies on the statement attributed to the father in her affidavit, “Enjoy your life in Kenya”.

6. It was pointed out that on page 139 of the bundle in paragraph 34 the father replies to the mother’s affidavit.  In that reply the allegations of the mother in paragraph 82 are not denied. 

7. I conclude that as the paragraph is specifically traversed by the father in his affidavit in reply, the fact of not denying the contents, in whole or in part, must be seen to admit the conversation.

8. It was submitted that the statement referred to in the mother’s affidavit as representing an acquiescence on the part of the father should not be seen as such.  The reason for this submission was that the father did in fact sign the consent form for the divorce.  However, as far as I can see, there is no evidence that the mother was ever told this.  It is an agreed fact there has been no divorce granted in the Scottish Courts.

9. The argument of the respondent mother continues that the father’s behaviour was consistent with his acquiescence in the child remaining in Kenya.  The Director-General’s response is to refer to paragraph 27 of the bundle where in paragraph 10 of an affidavit of the father he said that he had bought a ticket to go and see what was going on in Kenya and to check out the arrangements for his daughter.  He says that he was then telephoned by the mother who indicated that she was no longer living in Kenya. 

10. No date is given by the father in his affidavit for the purchase of the ticket but if in fact the conversation took place between he and the mother as referred to and she was by that time living in Australia with the child then it must have been after 22 October 2006 (the date when the child came to Australia).  There is no suggestion that any other action was taken by the father between April 2006 and October 2006.

11. At page 63 of the bundle and in particular in paragraph 75 of the mother’s affidavit she refers to an enquiry being received from the British High Commission.  It appears apparent that prior to 20 April 2006 the father had contacted the British High Commission and sought their assistance in ascertaining the circumstances in which the child was living.  The mother says her response was as follows, “[The child] is very well and she is enjoying her time visiting my relatives.  We are staying with my aunty at her farm and we are waiting on a response from the British High Commission in relation to my visa.  I hope to return to the UK within the month.”  The conversation with the British High Commission took place prior to the conversation with the father set out in paragraph 82 of the mother’s affidavit on page 65 and 66 of the bundle.

12. It is submitted that although there is no evidence to show that the father was taking active steps to have the child return to the United Kingdom it was, however, consistent with the father waiting to see if the mother could obtain a visa and return to the United Kingdom.  This however ignores the conversation set out in paragraph 82 of the mother’s affidavit where she advised the father that her visa had been refused.

13. It is submitted on behalf of the Department that the case law requires evidence of the acquiescence to be clear and unequivocal.  I was referred to the decision of the Department of Health and Community Services, State Central Authority versus Case (1995) FLC ¶92-629.

14. It was submitted that no acts or words of the father can be pointed to in this case to show unequivocal acquiescence.  It was submitted that the mother is not entitled to rely on an inference unless it is the only inference which could possibly be drawn.

Conclusion on this Defence

1. In determining this issue I need to consider how a child’s “habitual residence” can be changed.  I also need to ascertain whether a child’s “habitual residence” can be changed by acquiescence of a party.

2. A child’s habitual residence cannot be changed unilaterally by the actions of an abducting parent.  The case law is clear that the child’s habitual residence for the purpose of the Convention remains that of the wronged parent until that parent either consents to a change or alternatively acquiesces in a change.

3. What then constitutes acquiescence?

4. I turn to the authority of Department of Health and Community Services, State Central Authority versus Case (1995) FLC ¶92-629. This authority was relied upon by the parties in the present case.

5. The headnote to this reported decision is as follows:

   Child abduction — Habitual residence — Wrongful retention — Conduct or words to be unequivocal to constitute acquiescence — Breach of custodial rights required — Hague Convention.

   The parties were both born in Mauritius and are citizens of Mauritius. The parties were married on 20 February 1986 and had three children, M born on 9 September 1987, B born on 20 October 1989 and C born on 30 August 1991.  All three children were born in Mauritius.

   On 5 January 1993 the parties applied to migrate to Australia.  In December 1994 the parties applied for visitors visas to Australia, but intended to apply upon arrival in Australia for permanent residence.  Visas were granted on 13 January 1995 and on 17 January 1995 the parties arrived in Australia.  They had already sold almost all of their furniture and personal possessions before leaving for Australia.

   Shortly after arriving in Australia the parties applied for permanent residence, the wife was described as the “main applicant”.  By mid March 1995 the wife had commenced a relationship with another man. On 19 March 1995 the husband having found out about the relationship informed the wife that he intended to return with the children to Mauritius.  The wife took steps to remove the husband's name from the application for permanent residence.

   In March and April 1995 the parties had various discussions about the future.  The wife sought and obtained custody orders relating to the three children and a restraint on the husband removing the children from Australia.  On 3 July 1995 the State Central Authority, following advice obtained from the husband filed an application seeking the return of the children to Mauritius.

   The proceedings raised the following issues:

   (a) in what country were the children habitually resident at the time they were “wrongfully retained”; and

   (b) did the husband acquiesce to their “wrongful retention”.

   Held:

   (i) There needs to be clear and unequivocal words and conduct to amount to acquiescence.  There cannot be acquiesce in where a state of confusion and turmoil exists.

   Re R (Child Abduction) (1995) 1 FLR 716; Re A (Abduction: Custody Rights) [1992] Fam 106, applied

   (ii) The children did not come within the scope of the Hague Convention, as they were habitually resident in Australia.  It is the habitual residence of the child and not that of the parent which is essential.

   (iii) A wrongful retention entails retaining a child in clear breach of custodial rights.  The retention was not wrongful in that the parties were in Australia by way of mutual agreement.

6. The following is an extract from the judgement of the Full Court:

   In relation to acquiescence, Kay J said at 19 Fam LR 474 at 480:

   I am satisfied that at no time after 27 March 1995 had the husband acquiesced in the wife retaining the children in Australia.  He spent many weeks hopeful of a reconciliation.  In my view he still remains hopeful of a reconciliation, particularly if he can get the wife and children back to Mauritius.

   I would adopt the views of the Court of Appeal in Re R (Child Abduction) (1995) 1 FLR 716 at 727 that there needs to be clear and unequivocal words and conduct which could properly be interpreted as acquiescence on the part of the father.  In my view there cannot be true acquiescence where the parties are in a state of confusion and emotional turmoil (as identified by Stewart-Smith LJ in Re A (Abduction: Custody Rights) [1992] Fam 106 at 121).

   Being hopeful of a reconciliation in this case the husband was prepared to pamper to the wife's demands over the weeks following 27 March.  The wife's counsel was unable to point to any conduct on his behalf after that time which could clearly and unequivocally amount to an acquiescence by him in the wife's opposition to his returning with the children to Mauritius.

7. It seems that where a child has been removed from a Convention country without the approval of the parent who remains in that country and where that parent had been exercising “rights of custody” in relation to the child, the child’s habitual residence does not change with the abducting parents.  That situation changes when the wronged parent either consents to the child remaining with the abducting parent or acquiesces in the child remaining with that parent in the foreign land.

8. The question of what amounts to acquiescence has troubled Courts in many countries who are signatories to the Convention.  Our own jurisprudence has been influenced by decisions from some of these courts, in particular the UK courts.

9. In the unreported decision of the Full Court of Department of Child Safety & Carter [2006] FamCA 1465 the following words appear in the Courts own headnote:

   Given that the evidence did not point overwhelmingly towards or against acquiescence, the trial Judge’s ultimate finding that the father’s actions (or inactions) met the test of clearly and unequivocally showing acquiescence was unsustainable.

10. In paragraph 25 of the decision of the Full Court the following words appear.

    In our view, on all the evidence before him, it was not open to the trial Judge to conclude that there was clear and unequivocal evidence of acquiescence and/or that the circumstances were “wholly inconsistent” with a request for summary return of the child.

11. Thus the latest statement from the Full Court must be read to say that a finding of acquiescence by a parent to the change of “habitual residence” for a child requires “clear and unequivocal evidence of acquiescence and/or evidence of circumstances which were wholly inconsistent with a request for summary return of the child”

12. As the Convention does not apply to Kenya I should read that to be “wholly inconsistent with any action taken by the father to secure the return of the child to the UK.”

13. In the Judgement of the trial Judge he referred to the judgement of Lord Browne-Wilkinson on the House of Lords decision In re H and Others (Minors), [1997] 2 All ER 225. That decision has been adopted by this Court in a number of its decisions.  The following is an extract from that decision:

Is acquiescence a question of fact or law?

Once it is established that the question of acquiescence depends upon the subjective intentions of the wronged parent, it is clear that the question is a pure question of fact to be determined by the trial judge on the, perhaps limited, material before him.

In the process of this fact-finding operation, the judge, as a matter of ordinary judicial common sense, is likely to attach more weight to the express words or conduct of the wronged parent than to his subsequent evidence as to his state of mind.  In reaching conclusions of fact, judges always, and rightly, pay more attention to outward conduct than to possibly self-serving evidence of undisclosed intentions.  But in so doing the judge is finding the actual facts.  He can infer the actual subjective intention from the outward and visible acts of the wronged parents.  That is quite a different matter from imputing to the wronged parent an intention which he did not, in fact, possess.

Although each case will depend on its own circumstances, I would suggest judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child.  The Convention places weight on the desirability of negotiating a voluntary return of the child: see Article 7(c) and Article 10.  I disagree with the Footnote to the judgment of Waite L.J. if it is intended to provide guidance to judges in their fact-finding role.  Attempts to produce a resolution of problems by negotiation or through religious or other advisers do not, to my mind, normally connote an intention to accept the status quo if those attempts fail.  It is for the judge, in all the circumstances of the case, to attach such weight as he thinks fit to such factors in reaching his finding as to the state of mind of the wronged parent.  This was the approach adopted by the French Cour de Cassation in the case to which I have referred.

Finally, it should always be borne in mind that under Article 13 the burden of proving that the wronged parent has consented to or acquiesced in the abduction is on the abducting parent who is resisting the summary return of the child.  This placing of the burden of proof on the abducting parent is designed to ensure that the underlying purpose of the Convention is carried out, viz., the child is to be summarily returned to its country of habitual residence unless the abductor can prove that the other parent has in effect consented to the removal of the child.

The exception

It is a feature of all developed systems of law that there are circumstances in which one party, A, has so conducted himself as to mislead the other party, B, as to the true state of the facts.  In such a case A is not allowed subsequently to assert the true facts as against B. In English law, this is typically represented by the law of estoppel but I am not suggesting that the rules of English law as to estoppel should be imported into the Convention.  What is important is the general principle to be found in all developed systems of law.

It follows that there may be cases in which the wronged parent has so conducted himself as to lead the abducting parent to believe that the wronged parent is not going to insist on the summary return of the child.  Thus the wronged parent may sign a formal agreement that the child is to remain in the country to which he has been abducted.  Again, he may take an active part in proceedings in the country to which the child has been abducted to determine the long term future of the child.  No developed system of justice would permit the wronged parent in such circumstances to go back on the stance which he has, to the knowledge of the other parent, unequivocally adopted: to do so would be unjust.

Therefore in my judgment there are cases (of which In re A. Z. (A Minor) (supra) is one) in which the wronged parent, knowing of his rights, has so conducted himself vis-à-vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children.  However, in my judgment these will be strictly exceptional cases.  In the ordinary case behaviour of that kind will be likely to lead the judge to a finding that the actual intention of the wronged parent was indeed to acquiesce in the wrongful removal.  It is only in cases where the judge is satisfied that the wronged parent did not, in fact, acquiesce but his outward behaviour demonstrated the contrary that this exceptional case arises.

My Lords, in my judgment these exceptional circumstances can only arise where the words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child: they must be wholly inconsistent with a request for the summary return of the child.  Such clear and unequivocal conduct is not normally to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.  Still less is it to be found in a request for access showing the wronged parent's desire to preserve contact with the child, in negotiations for the voluntary return of the child, or in the parent pursuing the dictates of his religious beliefs.

It may be objected that to admit the existence of such exceptional cases in which the actual subjective intentions of the wronged parent do not prevail is to reintroduce by the back door the distinction between active and passive acquiescence which I have rejected.  It is true that there are features common to both approaches.  But in my judgment the two concepts are not the same.  The concept of active and passive acquiescence has led to the approach that acquiescence has to be tested objectively whereas in my view it is a question of subjective intention.  The concept of active and passive acquiescence has also led, as in the present case, to a wronged parent who has not, in fact, acquiesced being held to have acquiesced because he has taken some positive action without any analysis of what he has in fact done.  The important factor to emphasise is that the wronged parent who has in fact never acquiesced is not to lose his right to the summary return of his children except by words or actions which unequivocally demonstrate that he was not insisting on the summary return of the child.

Summary

To bring these strands together, in my view the applicable principles are as follows:

1. For the purposes of Article 13 of the Convention, the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind.  As Neill L.J. said in In re S. (Minors) "the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact".

2. The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

3. The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention.  But that is a question of the weight to be attached to evidence and is not a question of law.

4. There is only one exception.  Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.

Conclusion

Applying that approach to the present case, the judge found that in fact the father never acquiesced in the retention of the children in this country.  The requirements of his faith required him to pursue his claims in the Beth Din.  The question therefore is whether this was one of those exceptional cases when, by his actions, the father has led the mother reasonably to believe that, contrary to the father's true intentions, he was not seeking the summary return of the children.

In order to bring this case within the exception, the mother would have to show that the father's actions were clearly and unequivocally inconsistent with his pursuit of his summary remedy under the Convention.  The facts are far from satisfying that test.  As to the father's recourse to the Beth Din, the mother as an Orthodox Jew must have known of the religious requirement to go first to the Beth Din before resorting to the other courts with the consent of the Beth Din.  Moreover, the exact nature of the proceedings in the Beth Din was not demonstrated.  If (improbably) the Beth Din proceedings related only to the marriage and not to the children, there is no inconsistency between the Beth Din proceedings and the right to the summary return of the children: they would be concerned with different matters.  If, as was not proved, the Beth Din proceedings related also to the children, they do not disclose anything other than that the father, as his faith required, was seeking to secure the decision of his religious court in Israel as to the future of the children.  There is nothing inconsistent in a wronged father pursuing remedies in the courts of habitual residence (whether religious or civil) and subsequent recourse to the Convention for the summary return of the children by the courts of the country to which the child has been abducted.

As to the father's suggestion of access in Israel over Passover coupled with an agreement to return them to the United Kingdom, this proposal was as consistent with the father wishing to retain his contact with the children as with the decision by the father not to pursue the summary remedy for their return.  It falls far short of any clear and unequivocal indication that the father is not pursuing remedies under the Convention.

The judge inadvertently misdirected himself in relation to the letter wrongly dated 25 March 1996.  However, in my judgment this does not affect the validity of his conclusion.  He reached the only possible conclusion, bearing in mind his finding that the father never in fact acquiesced in the removal of the children.  In my judgment, for the reasons I have given the Court of Appeal misdirected itself in law.  It is for these reasons that I joined with your Lordships in allowing the appeal and ordering the summary return of the children to Israel.

1. It seems to me that there is a clear inference to be drawn from the words recited by the mother, (admitted by the father through the process of his failing to traverse the allegations in his affidavit in reply), in paragraph 82 of her affidavit.  In my view there is no other inference which could reasonably be drawn from the final words of the father, “Enjoy your life in Kenya”, other than he was acquiescing in the child remaining with the mother in Kenya indefinitely. 

2. On page 28 of the bundle and in particular in paragraph 12 of his affidavit the father said, “I had been swithering about raising proceedings in Kenya when I understood that [the child] was living their with her mother because I understand that Kenya is not a signatory to the Hague Convention on International Child Abduction.”

3. It seems probable that at the time the conversation took place as referred in paragraph 82 of the mother’s affidavit the father already knew that the Hague Convention did not apply to the country Kenya.  He had made enquiries about taking proceedings in Kenya but had not done anything.  These facts, in my opinion, add weight to the only available inference which arises from the words, “Enjoy your life in Kenya”.

4. I conclude therefore that the father did acquiesce in the retention of the child in Kenya by the mother.  To the extent that it needs to be stated I make that finding of fact.  Given the father’s acquiescence it then becomes clear that the child’s habitual residence immediately before the child’s removal to Australia was Kenya and as such was not a Convention country and accordingly the Convention and the application of the Child Abduction Convention Regulations does not apply to her.

5. Should I be in error in my decision thus far I now turn to consider ground three of the mother’s response.

1. The return of the child to Scotland would expose the child to psychological harm and/or place the child in an intolerable situation (Regulation 16(3)(b))

The Submissions and Conclusion

1. The mother opposes the return of the child to Scotland as she says it would expose the child to psychological harm and/or place her in an intolerable situation.  In this regard see Regulation 16(3)(b).

2. The mother’s submission is that the Family Report on page 4 at point 10 states the following:

   Given [the child’s] age, it was not possible to ascertain from her whether there would be a grave risk of harm for her if she were to return to Scotland.

3. It is submitted on behalf of the mother that the Family Consultant was not told the mother could not return to Scotland and live there.  It is submitted that it is not good enough to say that the mother could return to Scotland for a little while.  The risk is that the child might be put into the care of the father and the mother would be deported.

4. There is evidence from the Director-General that the mother may have available to her a visa.  I will turn to look at that visa in due course.

5. It is the submission of the mother that she would not be able to comply with the conditions of the visa which it is suggested would be available to her.

6. Page 181 of the bundle is an email from an officer/manager at the British High Commission in Canberra.  The email is addressed to Ms P, the solicitor for the Director-General.  The email addresses the prospect of a visa being issued to the mother in this case in order for the child to be returned to the United Kingdom with the mother or the issue of a visa consequent upon the child being returned to the United Kingdom.  The email advises that there is no provision for a parent to be given a special visa to return to the United Kingdom to resolve custody issues.  It then goes on to point out that the mother could apply for a normal visitor visa to the return to the United Kingdom.  The conditions are then set out.  The conditions require, inter alia, the following:

   1.That the visa holder does not intend to take employment in the United Kingdom.

   2.The visa holder does not intend to produce goods or provide services within the United Kingdom including the selling of goods or services direct to members of the public.

   3.The visa holder does not intend to undertake a course of study or school.

   4.The visa holder will maintain and accommodate herself and any dependants adequately out of resources available without recourse to public funds or taking employment or will, with any dependants, be maintained and accommodated adequately by relatives or friends.

   5.That the visa holder can meet the cost of return or onward journey.

   6.That the visa holder is not a child under the age of 18.

7. The email goes on further to say that it may be possible for the mother to apply for a visa under paragraph 246 of the Immigration Rules.  This would be for a person exercising rights of access to a child resident in the United Kingdom.  Two of the conditions of such visa include:

   1.There will be adequate accommodation for the applicant and any dependants without recourse to public funds in accommodation which the applicant owns or occupies exclusively;  and

   2.The applicant will be able to maintain himself and any dependants adequately without recourse to public funds.

8. On 27 April 2007 I granted leave to the mother and her partner, Mr N, to file further affidavits in the court.  These affidavits went to the financial circumstances of the parties and need to be taken into consideration when considering whether the mother could meet the particular conditions of the visa’s referred to in the email above addressed.

9. In the affidavit the mother sets out her assets and liabilities.  The mother’s assets are exceeded by her liabilities.  She has no savings.  She earns $1,800 gross per fortnight in her occupation as a nurse.  She has no assets in the United Kingdom.  She has not received any child support from the father since March 2006.

10. Mr N, the mother’s partner, sets out that he has no employment in the United Kingdom or offers of employment there.  He has no abode in the United Kingdom.  He owns no real estate whether in the United Kingdom or elsewhere.

11. The child is five years of age.  It seems common ground that she has been predominantly cared for by her mother during the course of the marriage and since.  There is no reason to suspect that the child has other than a good and close relationship with her mother.  Although she saw her father regularly prior to her departure from Scotland she has not seen him now since April 2006.  I have no reliable evidence as to the nature of the current relationship between the child and her father.  It was conceded by the Director-General in submissions that the mother had been the primary carer for the child throughout her life.

12. It seems clear to me that the mother would not be able to fulfil the conditions of the visas that would be available to her to return to Scotland and accompany the child.  To require the child to be returned to Scotland without her mother and remove her from her primary carer at this time of her life would in my opinion create a grave risk of her being psychologically harmed.

13. It is one of the submissions of the Director-General that the mother is the author of her own misfortune.  It is submitted that she did not have to leave the United Kingdom when she did and therefore she should not now be able to rely on a defence which is grounded on the proposition that she can no longer return to the United Kingdom.

1. On page 76 of the bundle is the letter from the Home Office to the mother’s solicitor.  That letter points out that the mother is an “illegal overstayer”.  Illegal entrants have no entitlement to make an application for leave to remain in the United Kingdom under the Immigration Rules.

2. The letter points out the circumstances in which the mother could remain as a spouse under the Immigration Rules.  It is clear that those grounds would not apply to the mother as she was not in a subsisting marriage.

3. The letter says:

   Your client is to be removed from the United Kingdom at public expense and her spouse is free to accompany her, also at public expense if necessary, should this be his wish.

   It points out that the mother is able to make an application from abroad to return in the proper manner.

4. The mother appealed that decision and the appeal was rejected as set out on page 109 of the bundle.  That letter includes the following:

   I must remind you that your client has no legal basis to remain in the United Kingdom and must now make arrangements to leave the United Kingdom.

   If your client fails to leave the United Kingdom then arrangements will be made for her removal.

5. At page 111 of the bundle is a document titled “Notice to a Person Liable to Removal”.  This notice is dated 31 May 2005.  It contains the following paragraph:

   You are therefore a person who is liable to be detained pending the completion of arrangements for dealing with you under the Immigration Act 1971.  I propose to give directions for your removal from the United Kingdom in due course and details will be given to you separately.

6. Page 115 of the bundle evidences advice having been received by the mother that she could apply for a visa in Kenya which could be processed in as little as four days.

7. On page 117 of the bundle there is a copy of a “Refusal of Entry Clearance or Certificate of Entitlement to the Right of Abode” issued to the mother.

8. In the circumstances as set out above I am not satisfied that the mother created the circumstances which led to her being unable to return to the United Kingdom.  I am satisfied that the mother was on the point of being deported from the United Kingdom and that her action in removing herself to Kenya was what she thought would give her the best chance of being able to re-enter the United Kingdom.

9. Regulation 16(3)(b) provides that the court may refuse to make an order for the return of the child upon being satisfied that the child would be exposed to a grave risk of physical or psychological harm or otherwise placed in an intolerable situation.  I am of the view that the return of this child to the United Kingdom in circumstances where it is most unlikely that her mother would be able to return with her would expose the child to psychological harm or otherwise place her in an intolerable situation.

1. Notwithstanding the abovementioned finding I still have a discretion to require the return of the child and in so doing may impose conditions.  The Full Court in the decision of McAuliffe and The Director-General of Community Services, an appeal from a decision of mine, was critical of the imposition of numerous conditions and in particular where those conditions could not be precisely stated.

2. The conditions which would need to be imposed in this case are very similar to the conditions which I attempted to impose in the decision of McAuliffe.  I conclude that if I imposed similar conditions, albeit more precisely worded, they would run foul of the Full Court in that they would likely be so numerous and onerous as to seem not possible to reasonably implement.  If that was the case the Full Court determined that the application for return should be refused.

3. Having considered all the above matters it seems to me that the application of the Director-General should be refused and accordingly I would dismiss his application.

4. There is no need for me to consider the other objections of the mother.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  18 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DEPARTMENT OF COMMUNITY SERVICES & FRAMPTON