No. FD15P00100
Neutral Citation Number: [2015] EWHC 2824 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Monday, 8th June 2015
Before:

MR. JUSTICE BAKER
(In Private)
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IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003
AND IN THE MATTER OF LS (A CHILD)

B E T W E E N :

	VS	Applicant

-  and  -

	MJ	Respondent
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MR. M. JARMAN (instructed by the International Family Law Group) appeared on behalf of the Applicant.

MR. N. ANDERSON (instructed by Hanne & Co.) appeared on behalf of the Respondent.

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J U D G M E N T
MR. JUSTICE BAKER: 

1	These are proceedings brought under the Child Abduction and Custody Act and the Brussels II Revised Regulations by a father who seeks the return of a boy, L, born 26th September 2010 - he is therefore four years and nine months old - to Lithuania.  L was abducted from Lithuania and brought to this country by his mother (the respondent) in November of last year.  

2	Prior to that date it seems that the care of L had been shared between the maternal and paternal families.  L’s mother was living, for the most part, in this country and L was spending some time with his maternal grandmother and the rest of the time with his father and paternal grandmother.  The precise arrangements and dates and periods of time he spent in each home are unclear.  What is clear is that a substantial part of responsibility for his care was in practise undertaken by his father and paternal grandmother.  I have the advantage of a report prepared in the context of proceedings in Lithuania by the Children’s Protection Department for the local area, dated 23rd October 2014 (shortly before Lukas was abducted and brought to this country).  The report indicates that the arrangements for L’s care in the home of his father and paternal grandmother were entirely suitable and that L’s needs were being met in that home.  As I say, that report was prepared for proceedings in Lithuania.  It seems that the father had decided to launch proceedings in Lithuania to obtain the custody of the child.  It may be (although it is unclear) that it was that which led to the mother taking the course she did.  L has been living with his mother in this country.  He has been to school in this country and there is nothing to indicate that he has not been well look after here, so far as I am aware.

3	The father launched this application by an application dated 6th March 2015.  There have been various interim orders by no fewer than six judges of the Family Division.  The mother filed a statement setting out her prospective defences on 10th April 2015 indicating that she would wish to argue a defence under Article 13(b), namely that there was a grave risk that L’s return to Lithuania would expose him to physical or psychological harm and otherwise place him in an intolerable situation.  She made a series of allegations in support of that defence and buttressed that with a statement filed in these proceedings on the same date.  Thus the matter was eventually listed for a hearing before me today.  Towards the end of last week, the mother indicated through her representatives that she no longer wished to contest for the Article 13(b) defence.  In other words, she has now accepted through her counsel that L was wrongfully removed and that there is no defence that she can properly put forward to preclude an order for his summary return.  

4	The issue which I have had to determine, therefore, is the arrangements for that return and to address this I must briefly allude to the mother’s current circumstances.  The mother is in a relationship with another Lithuanian man in this country and she is currently heavily pregnant and expecting a child by him with a due date of 21st June 2015.  On that basis Mr. Anderson, who appears for her today, seeks to persuade the court that I should make an order for the summary return, but delay the return for a period of six weeks so that L is able to return with his mother.  The mother in her statement alluded to some possible difficulties about that return in those circumstances; this statement was of course when she was still relying on her article 13(b) defence.  She has stressed concerns because she has said that she will be unable to go to Lithuania after the new baby is born because her current partner lives in this country and will have rights in respect of his child.  However, she no longer seeks to advance that argument today rather she bases her case on what she says are L’s interests; he is excited about the prospect of having a baby brother, he is looking forward to the birth and he is happy and settled here.  In all the circumstances, for reasons set out in her statement, and in particular paras.13 and 39, she seeks to argue now that it would be unfair on L to require him to be returned summarily.  

5	Mr. Jarman on behalf of the father does not accept this argument.  He says that his client is able and willing to come to this country next week, or certainly within seven days or so, to collect L and take him back to Lithuania.  

6	It is often the case that this court is faced with the need to devise and refine arrangements for the implementation of orders for summary return.  To that end it is not uncommon for the court to delay the implementation of an order to facilitate the orderly return of a child often in the care of the parent who has abducted him.  However, the law requires the court to make an order for the summary return under the Hague Convention, not the orderly return of the child, although obviously the court will adopt a sensible approach in whatever order it makes, or at least will try to do so.  

7	In these circumstances, however, Mr. Anderson’s request for the court to delay implementation of the order for a period of six weeks seems to me to go beyond what is permissible in the latitude given to the courts to facilitate the orderly implementation of a summary return order.  A period of six weeks after all is supposed to be the maximum period in which cases for the summary return of children who come under the aegis of Brussels II Revised are to be determined and indeed implemented.  In fact, this case has been proceeding now for a period of three months, so a further period of six weeks would be very considerably beyond that which is expected for cases brought under Brussels II Revised.  

8	This court’s obligation where no defence is advanced or succeeds is to order the summary return for all the policy reasons which underpin the Hague Convention and Brussels II Revised.  In this case, L has lived with his father and paternal grandmother for much of his life and prior to his wrongful abduction by his mother in November of last year.  An order for a summary return to his father is, therefore, to a very considerable extent, returning him to the status quo which he enjoyed and where he was apparently well looked after prior to the wrongful abduction.  The father is able and willing to collect the child within seven days and, although I understand and appreciate the arguments put forward on the mother’s behalf, it seems to me that it would go beyond what is permissible in the orderly implementation of an order to delay for the period proposed by Mr. Anderson on behalf of the mother when the father is able and willing to come to this country to collect the child and to take him back so that he can resume living under the arrangements that previously existed.  

9	Accordingly, the order I shall make is for L to be returned to Lithuania no later than midnight on 17th June 2015 (that is to say some nine days hence) and that, in the absence of agreement between the parties, he shall be returned by means of his father coming to this country and collecting him.