B e f o r e :
MR. JUSTICE BAKER (In Private) ____________________
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Transcribed by BEVERLEY F. NUNNERY & CO. (a trading name of Opus 2 International Limited) Official Court Reporters and Audio Transcribers 5 New Street Square, London. EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected]
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MR. Gillon. CAMERON was instructed by ADH Law for the Applicant Father. MS. Lauren LANSON was instructed by Ozoran Turkan Solicitors for the Respondent Mother. MS. Kelly WEBB was instructed by CAFCASS Legal for the children's guardian. ____________________
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MR. JUSTICE BAKER:
This is an application under the inherent jurisdiction by the father for the return to Northern Cyprus of his son, D, who is aged six. The application is opposed by the boy's mother.
The brief background is as follows: The parties were married in 2009 in Cyprus, D was born in Cyprus and has lived there all his life. At all material times, therefore, he has been habitually resident there. It is the mother's case that the parties' marriage was marked by episodes of domestic violence perpetrated on her by the father. The father denies that this is the case and I shall deal with this in a little more detail below.
The marriage broke down and the parties were divorced on the mother's application and petition in 2015. By an order of 29 th December 2015 in the Famagusta Family Court, the following arrangements were made in respect of D: First, custody of D was given to the mother; secondly, the father was ordered to pay child support for D; thirdly, contact between D and his father was ordered to take place "to establish personal relations" every Wednesday and Thursday between 13:00 and 20:00, every Sunday between 09:00 and 20:00 and between 09:00 and 18:00 on the second day of religious holidays. The order further made provision for financial matters, which it is unnecessary to recite here.
In the Spring of 2016, following that order, it seems there was an attempt at reconciliation between the parties but this failed. In August 2016, the mother brought D to the United Kingdom ostensibly for a two week holiday. The father agreed to the trip on that basis and even drove the mother and D to the airport. On 31 st August 2016, however, the mother sent a text message to the father telling him that she was not returning. Since that date, the mother and D have lived in South London with the maternal grandmother and uncle who live in this country.
On 15 th September 2016 the father, who had come to England in an effort to achieve the return of D to Cyprus, filed an application in the Central London Family Court seeking the return of D to Cyprus and what he described as a "residence order" in his favour. His hope was that D would be returned to Cyprus before the start of the school term on 19 th September 2016, but that did not happen. Prior to his arrival in this country, he had started proceedings in North Cyprus to enforce the earlier order. On 16 th September 2016, the mother applied for a non-molestation order and a prohibited steps order. On that day, District Judge Dias in the Edmonton Family Court, at a without notice hearing, made a non-molestation order against the father preventing him coming within one hundred metres of the property at which the mother was residing or sending any threatening or abusive text messages or other communications to the mother, save through solicitors. At the same hearing, the District Judge made a prohibited steps order preventing the father from removing D from the care of the mother.
Meanwhile, the father's application which was earlier in time had been listed in the Family Division. On 29 th September 2016, it came before Mr. Charles Geekie QC sitting as a deputy judge of the Division. Both parties were represented at the hearing and the mother accepted that she had retained D in the United Kingdom without the father's consent. The judge made various directions including for a CAFCASS officer to prepare a safeguarding letter and for the documents to be filed and for the matter to be listed again on 27 th October 2016. An order was also made requiring the mother to make D available for contact with the father, both by Skype three times a week and also on four occasions for direct contact.
The matter came back before me on 27 th October 2016 and on that occasion, I made an order stating inter alia , first, by way of recital:
It is ordered that:
Pursuant to that order a report was obtained from a Mr. Hassan Balma, an advocate in Turkey, who concluded:
In her statements, the mother has alleged that the father has been violent to her during and after the marriage. In particular, she claimed that, during an argument in May 2016, he pushed her and caused her to break her leg. Subsequently, she says, he assaulted her again and on this occasion she called the police. She further alleged that he has threatened, insulted and harassed her. The mother alleges that the father has assaulted her in the presence of the child including, she says, on one occasion by pulling her hair. She also claimed that he ignored the terms of the court order of 29 th December 2015 by bringing D back after contact at times of his choosing.
The mother said that it was in this context that she decided that she could no longer bear his behaviour and threats and decided to move to the UK with D. Thereafter, according to the mother, the father started sending her and the family threatening text messages and threatening to kill her and her family. Examples of the abusive text messages are exhibited to one of her statements that she has filed in these proceedings. They include the following:
"Look I'll break the door and walk in. Ask the police. It's my right. I bought the house. If you want, get your mother's key for her house. This house for my child."
"And you prostitute's child. Every time you beg, I will cut your flesh."
"You son of a bitch. I will be dancing with your screams."
"Your mother should prove that she is not sending you for money."
"You son of a bitch. You are selling my car with the people who sleep around."
"You planned to kidnap my child."
"Did you think I would've just let go?"
"I will fuck you all."
Those quotations are taken from translations of text messages exhibited in the original to the statement.
In his statement, the father denied that he assaulted the mother. He denies that the mother sustained a broken leg as a result of being assaulted by him and instead described an accident in which he says she sustained an injury to her foot, fracturing her toes. In describing this account that he draws attention to a medical report from a doctor which is consistent with the injuries and the incident as described by him. The father denies pushing the mother or pulling her hair. He denies that D has witnessed any incidents between them. He denies making threats to the mother's family. He accepted that he had sent text messages of an abusive kind as evidenced above, but described them as showing two headstrong people having an argument with each other. He believes that the mother had been planning to leave for some time to set up a new life in this country. He noted that the mother in her complaint to the police in September in this country made no allegation that he was a danger to D and, in fact, said expressly that he was not, although in her statement in these proceedings she contradicted this assertion.
The father relied on positive comments made by him by a social worker in Northern Cyprus in a report and also sent to the CAFCASS Guardian. In response, the mother asserts that the father who is a successful businessman in Northern Cyprus had used his influence through family connections with Social Services to obtain an unfairly positive report.
The CAFCASS Guardian, Ms. Jolly, has prepared a detailed report in accordance with the direction. For that purpose she met D, spoke via telephone and email with the social worker in Northern Cyprus, spoke to the mother by telephone and also to the father by telephone with the assistance of an interpreter. She recorded that social services had told her of the police passing on information from the mother alleging threats and abuse. Ms. Jolly confirmed that social services were told that the mother did not believe that D was in any immediate harm from his father, although she had felt unsafe due to the threats.
A further referral had been made to social services by the refuge with which the mother was initially in contact based on the mother's assertion that the father had been using the time he was spending with D to manipulate him to convince him to return to Cyprus. Social services considered these matters, but did not consider the concerns met the threshold for intervention noting that the proceedings were ongoing and the mother accessing support.
Ms. Jolly was also able to establish that the police had undertaken a risk assessment and concluded on the basis of the mother's allegations that there was a high risk to her and her family.
The key part of Ms. Jolly's report is her description and analysis of her interview with D. After preliminary discussion when she putting D at ease, she asked him how he came to be in England now and D replied "because my mum's separate from my father". He further informed her that he came here with his mum because she had separated from his dad and wants to live in England. He added, however, "I would like to live in Cyprus, but my mum is scared of my father". Ms. Jolly gently explored why his mother was scared of his father to which D replied that his father gets "quite angry". He said that he had seen his dad become angry "many times". Asked by Ms. Jolly what happens when his dad is angry, D said that he heard his parents' voices many times and he had heard his dad shouting at his mother. He also said that he had seen his father pull his mother's hair.
When Ms. Jolly asked him why he wanted to go back to Cyprus, he said, "because it's my country". He said he liked England "a bit" and then later said he liked it very much. He said he loves his mum because she is "a beautiful mum". He also loves his dad. He enjoyed spending time with his dad when he came over to England "because I love my father and I love my mum". He told Ms. Jolly what he and his dad did when they went out together. On the last occasion, before Ms. Jolly's visit, he had taken him to Toys R Us.
In response to a direct question from Ms. Jolly, D said that neither parent talked about the other. D told Ms. Jolly that he would like to live with his mum in Cyprus. Ms. Jolly asked him whether he would feel scared about returning to Cyprus, but D - in what Ms. Jolly described as a seemingly confident tone - replied that he would not "because I love Cyprus".
After the conversation finished Ms. Jolly offered to take D back to join his mum who was waiting outside in the waiting area, but D wanted to stay and spend more time with the interpreter and they played together for a bit before he went back to his mum.
In conversation with Ms. Jolly the mother said that, notwithstanding the court order, the father was continuing to discuss the proceedings and criticise her when talking to D. Ms. Jolly asked the mother what she would do if a return order was made. She became emotional when she told Ms. Jolly that she would accompany D back to Northern Cyprus if an order was made. She explained that she could not leave D with his father. The mother told Ms. Jolly that she was scared about the prospect of returning because she believed the father would carry out his threat to have her raped and murdered. She does not think it possible to have protective measures in place that would protect her. She said that her home in Cyprus was near fields and with not many people around who knew her. In contrast, she said the father had connections with many official people.
In Ms. Jolly's conversations with the father, he told her that the contact visits had given him a welcome opportunity to do things with D. As to the threats he made to the mother, the father said that it was an angry reaction to being informed that D would not be going back to Cyprus. He apologised and said that he understood his behaviour was unacceptable. He accepted that some messages he sent would be unacceptable. He told Ms. Jolly that he believed this was all part of a plan to make him angry. He said, however, that he would accept protective measures if the court decided to put them in place to provide reassurance in the event that a return is ordered.
In her analysis, Ms. Jolly concluded that D had been exposed to conflict between the parents and noted that D had said that he had seen his father assaulting his mother. D has some understanding, according to Ms. Jolly, that his mother is frightened and that is why they came to live here. However, whilst he likes being here, it is clear, according to Ms. Jolly, that his stated wish is to return to Cyprus which is the place that he knows best and loves.
Ms. Jolly was struck by the way in which D was observed to have a spontaneous and sustained identification with the interpreter. Ms. Jolly described this as very stark and compelling, something she had not come across before. In her view, it was a powerful demonstration of D's identification of himself as a little boy from Cyprus. He has, as Ms. Jolly describes, "a significant connection with that country reflective of his ethnic and cultural heritage, his first language and the time he has spent there". Ms. Jolly thought that, while his cultural and linguistic needs can be met in his current living environment with his mother, maternal grandmother and uncle, he experiences a sense of loss of being removed from day to day live in Cyprus. Ms. Jolly observed that:
On that basis, Ms. Jolly recommended that, subject to the father providing undertakings and protective measures which could be mirrored in Cyprus and the social services in Famagusta confirming they stand ready to assess the situation and provide what is needed by way of support and protection, she will support D's return to the Turkish Republic of Northern Cyprus. She had further advised that the case papers in the proceedings, including this report, should be transmitted to the social services in Northern Cyprus and be disclosed in any proceedings concerning D's future welfare in that country.
Furthermore, following that report, Ms. Jolly did receive an email from the social worker in Northern Cyprus confirming that she would be able to take protective and preventative measures under the law in that country if the mother were to return. She pointed out that they would have the opportunity to do family work with the parents and stressed that D's welfare was "as important to them as it is to us".
As to the law, the leading authority on the approach to be adopted in applications for a summary return under the inherent jurisdiction to countries that are not party to the Hague Child Abduction Convention is the decision of the House of Lords in Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights) [2005] UKHL 40 . In the speech of Baroness Hale of Richmond, the following principles are set out:
Discussion and Conclusion
On behalf of the mother, Ms. Lanson submits that it is clear that, whilst it is clear that the child misses his life in Northern Cyprus, that is not enough to justify an order for return. The court needs to balance the risk to the child in experiencing harm coming to his mother or the stress of anxiety that she would experience if ordered to return against the benefits of a return. The court in Northern Cyprus has already adjudicated on the matter of the child's residence determining that he should live with the mother with visiting contact to the father. In the event that no order for return is made, the child will benefit from a closer relationship with his maternal family in this country whilst still being able to maintain a relationship with his father who is a man of means and able to afford to fly over to see him.
Applying the principles in Re J , a summary return should not be regarded as automatic reaction. Ms. Lanson submits that the outcome of a delicate balancing act in this case should be for the court to decide that it is not in his best interests to be returned to Northern Cyprus where the risks of harm are, in Ms. Lanson's phrase, "so great".
In my judgment, however, this is a clear case to order that D be returned to Cyprus at the earliest practical opportunity. In an application for the return of a child brought under the inherent jurisdiction, it is the child's welfare that is the court's paramount consideration. However, as Re J confirms, the court does have power under the inherent jurisdiction, applying the welfare principle, to order the immediate return of a child without a full welfare investigation. This court has carried out what I hope has been a swift, realistic and unsentimental assessment of the child's best interests starting from the proposition that it is likely to be in his best interests to be returned to Northern Cyprus so that disputes about his future can be resolved there.
In this case, there are strong arguments, in my judgment, for concluding that he should be returned there:
On the other hand, I take into account the points raised on behalf of the mother. Her allegation of abuse and risk of harm and the abusive texts which the father has sent her provides support for her allegations, as do D's comments about the father pulling the mother's hair. Although any domestic violence or abusive behaviour or language between parents leads to a risk of emotional harm to the child, there is, in this case, no evidence of direct abuse or harm suffered by D. I take into account, of course, that D would be adversely affected by the mother's suffering and unhappiness if she is obliged to return.
Overall, however, I conclude that any risk of harm of the sort identified above can be addressed through the investigation proposed by Northern Cyprus social services into the circumstances of the family. The Guardian has, as I have described, received assurances about this investigation which will prioritise D's welfare and will extend to an investigation of the mother's allegations of domestic violence and harassment. I will therefore direct that all papers in the case be disclosed to the Northern Cyprus social services and that this judgment should be transcribed and translated and sent to Northern Cyprus.
In addition, as a condition of my return order, I have required the parties to give a series of undertakings. The father has undertaken:
The mother has undertaken:
I explained to both parents that the undertakings they have given are promises to the court and that, if broken, they would be in contempt of court. Each of them accepted that and signed copies of the undertaking form. The undertakings shall be appended to the order made by the court and sent, along with the rest of the papers, to Northern Cyprus. In my judgment, the involvement of the Northern Cyprus social services and the undertakings given by the parties significantly reduce the risk of any harm to D resulting from his return to Northern Cyprus.
I have therefore reached the clear view that the right order to make in this case is to order that D be returned to Northern Cyprus, as described above.
The only remaining issue is the date on which he should be returned. The mother asks that it should be postponed until 7 th January 2017 - she wishes D to be a page at her friend's wedding in this country - but, in my judgment, he has been away from his home for too long already and I do not think that postponing the return for nearly four weeks can be justified. I am conscious, of course, that the holiday season may make travel more difficult and I therefore have decided to direct that he be returned to Northern Cyprus within fourteen days, that is to say, by no later than 29 th December 2016.