A Mother v A Father

1. I am concerned in this matter with the interests of the two children N who is 6 years old and his brother R who is rising 4 years old

2. The applicant father was born in Italy. The respondent mother was born in the UK. The parties married in England in 2021.

3. This is an application for the summary return of the children to Italy, where the applicant father asserts the children were habitually resident until 7 December 2022 when the respondent mother left there with the children to visit her parents in England.

4. The father asserts that the children have been wrongfully retained in the jurisdiction in breach of articles 3 and 5 of the Hague Convention 1980

5. The mother does not accept that narrative or indeed that she wrongfully retained the children in this jurisdiction.

6. The applicant father is represented by Michael Gration KC and the respondent mother by Jennifer Perrins. I was assisted greatly by both of them.

7. This hearing was listed by order of Mr Justice Cobb on 27 October 2023. Summary background:

8. By way of litigation background, the father first applied in this jurisdiction for orders for the summary return of both children on 29 June 2023, he had also before then on 17 April 2023 commenced divorce proceedings in the Family Court in Italy.

9. The English application came before Mr Justice MacDonald on 17 July 2023 by which time the Italian court had ordered that the custody of the children be shared with the children living with the mother in this jurisdiction and providing for time for the children to spend with their father both over the summer and when he visited them in England

10. The father applied in Italy on 9 June 2023 to appeal that decision.

11. The father confirmed to the English courts on 17 July 2023 that he had appealed that decision and the parties informed the court that they had agreed to adjourn proceedings in this jurisdiction pending determination of proceedings concerning the children in Italy. There was also hope that the parties could enter mediation.

12. The Italian appeal decision was handed down on 24 July 2023 and dismissed the father’s appeal relating to where the children should live, but extended the time for the children to spend with their father over the summer to 20 days.

13. The mother had agreed (in the Italian order) that she would make the children available to spend 20 days holiday time with their father over the summer holidays (which they enjoyed) and to make them available for video calls with the father each Tuesday and Thursday (English time) at 5.30pm.

14. The order of Mr Justice MacDonald provided for proceedings to be dismissed by 23 November 2023 if not restored before then.

15. The applicant father then applied on the 19 th of October 2023 for an extension of the period in which the proceedings could be adjourned inviting the court to extend that until the 1 st of November of this year 2024.

16. The underlying purpose of that application, which is the extant application I am dealing with today, arises from the ongoing proceedings in Italy and I am directed to a letter by the applicant’s lawyer Paula Tiso dated the 30 th of October 2023 in which she suggests that the Italian proceedings will take place over the next year. I have also been provided with a bundle of documents which contain the Italian court proceedings.

17. The applicant was also, in the application made in October of this year, seeking enforcement of the order dated the 17 th of July so far as contact is concerned as he asserted that contact is not properly being facilitated by the respondent mother. I note that the children have not seen their father for some time now. That part of the application understandably has not been pursued before me today. The issues

18. The father seeks an extension of the adjournment of these proceedings until November 2024.

19. The mother invites me to dismiss them today.

20. I deal with their respective cases below, firstly summarising the background. Background:

21. The respondent mother at the time that the parties met in Italy was working at a private school in Italy teaching English to foreign students. The father was studying to obtain a football coaching license and working in a local bar. In and around November 2015 the parties agreed to go to work in the United Kingdom as they both formed the view that job opportunities were better there and the applicant father had a job interview coaching within an English football team. The applicant father went on to accept this post for a couple of months and later accepted a job coaching at another English football club. The parties later welcomed the arrival of the two children.

22. The applicant father signed a contract with the relevant English football club a few months after R’s birth and was in employment there until September 2021. Difficulties arose in the relationship between the parents, including the father alleging that the mother had a drug and alcohol habit and that she had disappeared with his children without his knowing where they were. The Applicant father took the children to see their paternal grandmother in Italy in 2021. It seems that both parties decided upon his return to take a fresh start and decided they would move to Italy and seek job opportunities back in Italy where they had first met.

23. I am told that in August 2021 or thereabouts there was an application to a local school in Italy which was a private school educating children from nursery up to the age of 14 and the mother also accepted a job as a full time English teacher there. The father obtained a part time job as a physical educator at the same school and the decision was made to move to Italy permanently. The parties then also got married for the ease of obtaining visas and getting full time employment linking to the father's Italian citizenship. The parties were married in Italy in September 2021. There is dispute as to where the parties initially lived, but it has no impact on the decision I must make today. From December 2021 the family rented a house in Italy and settled in the applicant father's hometown to bring up their children in Italy. The father asserts that they were both able to connect to old friends and began living in a routine in Italy the mother herself being able to speak and understand Italian. I am told that the relationship remained tumultuous but the parents hoped that they could work together to overcome this. The children engaged in the local community and I have seen evidence that they were registered at the local doctors and both enrolled at the same school in which their parents worked.

24. I note that N has a birth defect for which he had corrective surgery at around a year old. N is being monitored to ensure it does not negatively affect him; he was due for an appointment at a hospital in England in January 2024. I have no update about this and it does not impact on the decision I make today.

25. The mother’s case is that the family celebrated N’s birthday in Italy in December 2022. The mother left Italy with both children on 14 December 2022. She had stated in WhatsApp messages on 7 December that she would return in February. By the time the mother left Italy, the parties’ relationship had broken down so much that both parties had agreed they needed to live separately. The mother describes experiencing increasingly irrational and dangerous behaviour from the applicant after expressing her desire to separate. She will say that she experienced physical and emotional abuse, witnessed by the children and multiple attempts by the father to commit suicide - once while he was alone with the children at home.

26. It is the mother’s case that on the parties’ separation she had intended to stay in Italy and had been looking for a place to rent but to no avail.

27. The mother will say that the parties’ messages also show that the father told her to go back to the UK with the children, and that this was said during December before she left Italy. She asserts that in the messages he asks to change their names, to remove his name. Further her case is that after telling the paternal grandparent about the plans to live separately, they advised her that it would be better for her and the children if they went to live in England as, in their view the father would, ‘never leave you alone’; they also expressed they couldn’t help look after the children as they are getting older and the paternal grandfather is sick.

28. The father will say that he knew not that the mother intended to stay in England and that he expected the mother to return. He is clear that the children’s home and social life was in Italy.

29. I have no formal evidence filed in these proceedings from either parent in relation to these factual issues. As Mr Gration KC rightly says in his note for this hearing, this case is not set up for a full hearing and the parties’ positions are merely set out by way of background.

30. The issue before me relates to legal submissions as to the proper approach to an application for a summary return in the context of the time lapse between the date the children left Italy and the furtherance of the father’s application and in the context of the ongoing proceedings in Italy and the interim order determining where the children and mother can live.

31. I will be making no formal findings of fact. The parties’ positions on the issue before me:

32. Mr Gration KC on behalf of the father relies on the decision of Mr Justice Poole in G v H (Hague Convention: Wrongful Removal) [2023] EWHC 2351 (Fam) . In that case, Poole J considered a situation where the courts in Portugal had made an interim order that the children remain in England with the mother. That order had been made on the mother’s application, on a date after the father had commenced 1980 Hague Convention proceedings in England. The mother’s position was that the making of that order should result in the dismissal of the father’s application for return. The father sought an order that the proceedings be stayed for a period of time to allow for further steps to be taken in Portugal.

33. The Judge stayed the proceedings. His reasons for doing so appear at §22 of the judgment. Essentially, the Hague Convention proceedings remained of some potential utility in circumstances where the Portuguese Court may, in the future, make an order for the child’s return either substantively, or for the purposes of facilitating other directions within the Portuguese proceedings. The stay was put in place for one year, following which the return proceedings would be dismissed if not restored.

34. In the circumstances, and consistently with Poole J’s reasoning in G v H , it is submitted on behalf of the father that: a. The making of the Italian interim order does not retrospectively render the mother’s wrongful removal of the children lawful; b. The court may, in such circumstances: i. Determine the application, which requires consideration of it within the structure of the 1980 Hague Convention (i.e. the establishment of a defence and consideration of the exercise of discretion); or ii. Stay it in the exercise of its case management powers. c. Determining the application is not a realistic option at this stage. There is no evidence before the court that would enable that step to be taken. Effectively, the court would be deciding the application solely on the basis that an interim order has been made which would, if the mother returned the child now, allow her to get back on a plane and return; d. That is not a sound reason to grant a defence. By way of example, if the court did make a return order the father may approach the Italian court seeking further orders consequential upon the making of a Hague Convention return order. The Italian court may make a different decision (e.g. that upon return the children must remain in Italy until such time as a substantive welfare decision has been made); e. Accordingly, the best option (and the only realistic option) Mr Gration KC submits, at this stage of the proceedings is to grant a stay. There is no detriment to either party in doing so. There is no suggestion that the children are aware of or otherwise impacted by these proceedings so it does not seem to be detrimental to them, but it allows the father a remedy if the Italian court in the future makes some different order to the interim order that is currently in force. f. As a consequence, the Hague Convention proceedings are of continuing potential utility (as the Portuguese proceedings that Poole J was considering were). They should be stayed for a further period.

35. In oral submissions on behalf of the applicant it was submitted to me that there was an ongoing utility to these proceedings continuing as there may be assistance to the father were there a need to enforce any orders made in Italy and the father’s access to public funding is likely to be lost on the point that his Hague 1980 application is dismissed – were that to happen.

36. I was also advised that there had been submissions made by both parents to the Italian courts (and I was taken to these in the bundle of papers contained the Italian proceedings) and that there may be a decision relating to the interim arrangements and accordingly at the very least I ought not to dismiss this application until then. The mother’s case is summarised as follows:

37. There is no application (nor could there be) to enforce the ‘contact application’ as stated on the c2 application

38. The respondent mother invites me to dismiss the application in its entirety, to summarise her case she submits that: • the court is invited to dismiss these Hague Convention proceedings. They have been ongoing for almost 8 months and the applicant father is showing no sign of prosecuting them. • Delaying Hague Convention proceedings as the applicant father proposes is directly contrary to the objectives of the Convention. • In this case, the Italian court is already seized of welfare proceedings, and has determined on a welfare basis that the children should remain in the UK whilst those proceedings take place. As such, an application for a summary return to Italy is otiose; The applicant father’s application under the 1980 Hague Convention has been overtaken by developments in the substantive welfare proceedings.

39. The oral submissions were focused on developing those in the skeleton argument and focused on the policy objectives of the Hague 1980 convention – the utility of the proceedings – the ongoing impact of these proceedings on the mother and on the children (I summarise).

40. Ms Perrins also submitted to me that following on from the decision of Holman J in NM v SM I could find that the conduct of the father within the Italian courts amounted to acquiescence.

41. Ms Gration KC did not accept this proposition. I make no findings about that.

42. Ms Perrins relies on a number of cases not least: Holman J in NM v SM (Rights of custody in foreign court; acquiescence by that court) [2017] EWHC 1294 . In NM v SM the Irish court had allowed the mother to remain in the UK with the child for the duration of the Irish welfare proceedings. As with this case, the mother in NM v SM had returned to Ireland for court hearings, and the child had been in Ireland, with the knowledge of the court, who allowed the mother and child to return to the UK.

43. Ms Perrins highlighted that Holman J dismissed the Hague Convention proceedings on the basis that “ this is no longer a wrongful retention situation at all, since the child has already, to the full knowledge of the Irish court, been back within the state of habitual residence ”:

52. “The Hague Convention must be construed and applied purposively. The underlying purpose of the Convention is to procure the return of children, who have been wrongfully removed or wrongfully retained elsewhere, to the state of habitual residence, so that appropriate litigation can take place there, resolving the future of the child or children. That purpose was, in fact, fully achieved in this case when the abducting parent appeared personally before the Irish Court and made clear that she had the child with her in Ireland.”

44. A similar decision would have been reached submits Ms Perrins, in an earlier case by the President Sir James Munby in re D (Children : Child Abduction: Practice) [2016] EWHC 504 (Fam) but for the father withdrawing his application.

45. In Re D the then President allowed the applicant father to withdraw his application under the Hague Convention on the basis that it had been ‘overtaken by events’ ie a decision by the welfare court to allow the mother to remain in the UK rather than returning to the USA for welfare proceedings. Sir James stated: a. 23. I equally have no doubt that Holman J was entirely right to decide AF v HS as he did and for the reasons he gave. That was not a case where the basis of the application was a challenge going to the intrinsic merits of the Hague proceedings. It was, like the one before me, a case where the Hague proceedings had been overtaken by subsequent events – a change in the family's circumstances or developments in the foreign court – the effect of which was to deprive the Hague proceedings of any continuing utility and to make it unnecessary and inappropriate to allow the proceedings to continue in circumstances where there was no obvious benefit either to the parents or to the children in carrying on. In such a case, in my judgment, the court undoubtedly has power, applying the principles in Re C, to bring the proceedings to a premature conclusion. In the nature of things, I would expect such cases to arise only infrequently. The vast bulk of Hague cases will – must – continue to a substantive hearing in the usual way.

24. In the present case, the father sought, and was given, permission to withdraw the Hague proceedings. Had he not sought permission to do so, I would, and essentially for the same reasons as commended themselves to Holman J in AF v HS, have made the order sought by Mr Bennett summarily dismissing the proceedings.

46. On behalf of the mother it is submitted that the application under the Hague Convention is now completely pointless. If the mother returned with the children to Italy following Hague Convention proceedings, there would be absolutely nothing to prevent her re-boarding the same flight and returning to the UK because the Italian court has already determined that this is where the children should live during the proceedings which are ongoing in that jurisdiction. This is the situation faced by Mostyn J in SP v EB [2014] EWHC 3964 (Fam) when dismissing an application for the summary return of a child to Malta in circumstances where the Maltese court had allowed her to remain in the UK:

25. The second final matter is this. If I were to order Kate to return, say, next Monday and she duly complied with my order then, in the absence of a Maltese Court order preventing her from doing so, there would, in my judgment, given her age, her Gillick competence, and her right to freedom of movement within the EU, be nothing to stop her boarding the very next flight back to London. Were that to happen then, again, these Hague proceedings would have been proved to have been pointless.

47. Ms Perrins also addressed the decision in G v H both in her written document and amplified these in her oral submissions inviting me to distinguish this case from that decision.

48. First of all, the present case can be distinguished on its facts when compared with G v H (for example, in this case, the Italian proceedings are well underway and the children have travelled between Italy and the UK during the proceedings).

49. Ms Perrin at §48 of her written submissions submitted that “it does not appear from the published judgment that Poole J considered the above authorities which support M’s position.” I understood that on reading the judgment he does reference the case of Re D. but does not address those other cases relied upon by the mother.

50. It also appears from Poole J’s judgment that a key issue raised in that case was whether a later order of the Portuguese court meant that the original removal was no longer ‘wrongful’ . Poole J held that the decision of the Portuguese court could not retrospectively ‘cure’ what had been a wrongful act at the time. However, it is submitted that there are many other reasons why a prolonged stay/adjournment of 1980 Hague Convention proceedings should not be permitted. Whether or not it is possible to render an earlier act lawful, the policy aims and the terms of the Convention as described above militate strongly against delaying proceedings for a lengthy period. Furthermore the practical effect of the interim Italian decision in this case means there is no utility to a return order.

51. In conclusion it is the mother’s position that this is now a welfare case. Any issues between the parties should be dealt with in the continuing welfare proceedings in Italy. The 1980 Hague Convention application serves no purpose other than to allow the father to threaten the mother, and to restore matters periodically to the English court (at public expense).

52. The prolonging of 1980 Hague Convention proceedings achieves nothing My analysis and conclusions

53. It is plain on any reading that these proceedings have been before the court for a long period of time. The children left Italy in December 2022. The father invites me to extend the stay (and keep his application alive) until November 2024 which would be almost 2 years after the children’s departure from their then home.

54. The Italian courts are seized with welfare matters relating to both of these children and both parents are actively engaged in those proceedings have each filed statements as recently as October 2023 and await a decision from the court on the ongoing welfare matters.

55. There has been no judicial liaison between the courts in this jurisdiction and those in Italy. There is no request for any exchange of information or update, such as there was in the Poole J decision.

56. The mother has complied with the orders that the children travel to see their father in Italy and they left this jurisdiction for 20 days. To the credit of both parents, the mother ensured that the children travelled there and the father that they returned. They were accordingly complying with the Italian interim decision.

57. I am mindful of the principles underpinning the 1980 Hague Convention and adopt and agree with Ms Perrins’ submissions to me that the focus is on “prompt” and immediate action to put right a wrong.

58. The 1980 Hague Convention is intended to provide a summary remedy – “speedy” appears in the explanatory report and the word “prompt” in the convention itself.

59. This case has been before the courts without the father pursuing his application in any meaningful way for almost 7 months. I find that there is nothing in his application which gives any real need for the application to lie dormant whilst there is a proper welfare process ongoing in another jurisdiction.

60. I do not need to consider whether there has been acquiescence – I accept that the father’s case has been clear that he does not accept that the children were lawfully retained here and he is pursuing that case in the Italian jurisdiction. The Italian courts determined that the mother and children could reside together in England.

61. I do not need to comment on whether the decision of Mr Justice Poole was right or wrong, he clearly expressed his decision within the context of and by reference to the facts of that case. In my judgment the facts of this case allow me to reach a different view.

62. In my judgment the father’s application should be dismissed.

63. It has not been pursued in any meaningful fashion and is now over 7 months old.

64. The Italian courts are seized with the welfare interests of these two children and both parents are engaging in that process.

65. The Italian courts in making the interim decision permitted the mother and the children to remain living in this jurisdiction. There is in my view no purpose in any summary return application and both parties accept that the mother could simply come back here to live pursuant to the Italian court’s interim decision.

66. I find that there is no ongoing utility to the furtherance of these proceedings and the facts of this case differ from those in the case of G v H in three key ways: • The proceedings commenced after the Italian proceedings in which both parents engage • There are two children living in this jurisdiction about whom there are live interim orders regulating where and with whom they should reside made in another jurisdiction and the parents are complying with those orders. • There has been no judicial liaison between the two countries about this case.

67. I did consider and weigh with care whether I should adjourn these proceedings until we have a further decision from the Italian court, but I am not persuaded that there is an outcome from that court which would give rise to an ongoing utility in the Hague 1980 application in this jurisdiction. I am entirely satisfied that there are remedies available to the father should he need to access them to enforce any orders that might be made were the courts in Italy to order the children to return to Italy and the mother refused.

68. I say no more than this as I would be speculating as to what orders might be made and if so, when and I should not fall into that temptation.

69. I adopt the passage from the then President in Re D a. It was, like the one before me, a case where the Hague proceedings had been overtaken by subsequent events – a change in the family's circumstances or developments in the foreign court – the effect of which was to deprive the Hague proceedings of any continuing utility and to make it unnecessary and inappropriate to allow the proceedings to continue in circumstances where there was no obvious benefit either to the parents or to the children in carrying on. In such a case, in my judgment, the court undoubtedly has power, applying the principles in Re C, to bring the proceedings to a premature conclusion. In the nature of things, I would expect such cases to arise only infrequently. The vast bulk of Hague cases will – must – continue to a substantive hearing in the usual way.

70. I do accept the submissions of the mother that there is no longer any purpose in the father’s application and accordingly dismiss it.