UK – BATES – 1989

Court: High Court of Justice, Family Division, Royal Courts ofJustice, London WC2, United Kingdom.

Number: CA 122/89

Applicant: Mother

and

Respondent: Father

Date: 23 Feb 1989
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IN THE HIGH COURT OF JUSTICE No. CA 122/89

FAMILY DIVISION Royal Courts of Justice
London WC2
Thursday, 23rd February i98′

Before:

MR. JUSTICE WAITE

Re BATES (Minor)

MISS P. SCOTLAND and MR. D. M. THOMPSON (instructed by Messrs
Malkins Cullens & Sumption) appeared on behalf of the plaintiff

MR. L. SWIFT QC and MR. N. CARDEN (instructed by Messrs
Sheridans) appeared on behalf of the defendants

Tape transcription by C. H. Blackwell & Partners 283 Croxted Road,
London SE2l 8NN (01-670 9927)

JUDGMENT
(As approved)

Thursday, 23rd February 1989

JUDGMENT

MR. JUSTICE WAITE: This is an application under the Child
Abduction and Custody Act 1985 giving effect to the 1980 Hague
Convention on the civil aspects of international child abduction.
It relates to a young girl, aged two-and-a-half, of Anglo-American
parentage. Last Thursday week, 9th February 1989, she was removed
by her English nanny from the care and control of her American
mother in New York and brought by air to this country. The
abduction took place with the knowledge and approval of the
child’s English father, who had telephoned his authority to the
nanny from the Far East, where he is temporarily working.

On discovering the child’s disappearance the mother acted
with great promptness. The police and federal authorities were
alerted during the night of 9th/10th February, as a result of
which the central authority for the purposes of the Convention in
New York sent immediate notification to the equivalent central
authority in England, which is the Lord Chancellor’s Department,
via the United States Embassy in London, to the effect that the
child had been wrongfully removed within the meaning of article 3
of the Convention; removed, that is to say, from the State of New
York, as her habitual residence, in breach of rights of custody
attributable under New York law to, inter alios, her mother.

The Lord Chancellor’s Department gave immediate authority to
the mother’s English solicitor to take proceedings under the Act
and an originating summons joining the father and the nanny as
defendants was issued at once. These arrangements had all been
completed by about noon on Friday, 10th February. While they were
in progress the mother had set off in hot pursuit of her child,
catching a Concorde flight to London. Nanny and child had arrived
only a few hours ahead of her at Heathrow, where they were
confronted by the airport police and the mother’s English
solicitor. As a result of discussions which took place at the
airport the child and the nanny were allowed temporarily to stay
with the child’s paternal grandparents, who live near Birmingham.

Thanks to the speed of modern communications and the time
difference between the two countries, everyone concerned except
the father was either in England or about to land there by
lunchtime on that Friday. The lawyers in the case seem at that
point to have decided to do their best to match the slow and
dignified processes of the law to the speed of Concorde. The
result was a flurry of activity in this building that Friday
afternoon. The father’s London solicitors, acting on his
instructions from the Far East, had already issued an originating
summons making the child a ward of the English court. In temporary
ignorance of that fact, the mother’s representatives applied in
the early afternoon ex parte to the applications judge, Ward J.,
for a peremptory order under the Child Abduction Act for the
child’s immediate return, notwithstanding that no hearing of the
originating summons under the Act had yet taken place or, so far
as I am aware, been arranged.

The judge made an immediate order giving the mother custody
of the child and leave forthwith to remove her from the
jurisdiction, making it plain, however, that he expected notice of
his order to be given at once to the father’s solicitors. That was
not difficult to arrange because by then the father’s solicitors
were in the process of giving, or had already given, notice to the
mother’s solicitors of their wardship proceedings; to which the
immediate response of the mother’s lawyers was to find another
judge, Mr. Nicholas Wall, Q.C. (sitting as a deputy judge of the
High Court) from whom they obtained an immediate order summarily
dismissing the father’s wardship proceedings on the ground that to
have allowed their continuance would have frustrated the
peremptory return order which Ward J. had just granted.

That left the father with no recourse but an appeal, and late
that same afternoon an urgently convened appeal court, Kerr and
Balcombe L.JJ., made a holding order in the form of an interim
care and control order in favour of the mother pending an inter
partes hearing of her application for a peremptory order under the
Convention, which the court directed to be held on a date between
l3th and l7th February 1989.

That hearing duly started before me on Wednesday, 15th
February. It has proceeded by agreement as in effect the hearing
of the originating summons. A considerable body of affidavit
evidence had been sworn on both sides in time for the hearing, and
the father’s counsel, Mr. Swift, who appeared with Mr. Carden, did
not ask for any adjournment. The father, although in regular touch
with his solicitors by telephone and fax, has not himself supplied
any evidence by affidavit or otherwise. He has relied to a
considerable extent on his co-defendant, the nanny, to maintain
his case against the mother and support it with her oral and
affidavit evidence.

Such is the procedural background to the family history, to
which I now turn. The mother is 29 and the father 26. They were
married in August 1984. Tatjana, their only child, was born on
23rd August 1986. The mother is a tall, elegant young woman born
and brought up in the United States of America. In her late teens
she developed addiction to amphetamines which was only cured after
a long spell of voluntary hospital treatment. There has been no
recurrence of that problem. She is a forceful and also an
emotional person. She admits to a strong temper when roused or
thwarted. She is devoted to Tatjana, as many observers have agreed
and as can readily be seen from photographs of mother and child
together and the detailed diary which the mother has maintained of
the little events in her daughter’s life. The mother is still
determined, despite the upsetting events of recent days, to keep
her marriage together if she can, for everyone’s sake and
particularly for Tatjana’s.

The father I have not seen. He was born and brought up in
England. I accept the unchallenged evidence of a friend of both
parents that he is of a less forceful personality than his wife
and tends in many ways to be dependent on her. For most, if not
all, of the parents’ married life the father has experienced
phenomenal, almost legendary success as a pop musician. He is a
member of a musical band that enjoys international renown and very
high earnings, but which moves at the feverish pace of those
performers who share with their managers the knowledge that a
place at the top of the charts is tenuous and transient. An almost
ceaseless round of public engagements, rehearsals and recordings
means that the father has mostly to work by night and sleep by day
and be constantly on the move around the world. The mother, by his
express wish and also by her own inclination, has been
consistently at his side, sharing the same life.

The result has inevitably been that Tatjana, for the whole of
her young life, has been in the day to day care of a nanny, who
has perforce been her primary carer. Unfortunately it has not
always been the same nanny. There have been four of them so far,
consecutively. Tatjana has become attached to each of them in turn
and they to her. It is too early yet to judge the influence of
cause and effect and to assess how far Tatjana’s difficulties are
innate or due to the circumstances of her unusual life, but it is
common ground that her development has been slow. She has speech
difficulties and her vocabulary is deficient for her age. Both
parents acknowledge that she needs therapeutic help to overcome
these problems. Her life until now must have been the most nomadic
almost, ever to have been experienced by any child of her age. She
has accompanied her parents in rented apartments and numerous
hotel suites on both sides of the Atlantic, and on stays with her
English and American grandparents in Worcestershire and Florida.
The father owns a house in London and if the family can be said to
have a base anywhere it has been in that house. It has been the
home to which they have returned after overseas tours and during
such brief respites as the father has enjoyed from his
professional engagements and it has been occupied during such
periods as he has been professionally engaged in this country to
the limited extent that his financial advisers have so far deemed
fiscally prudent.

The parents’ marriage has for some time been under a strain
imposed partly by the unusual life they are forced to leave and
partly by clashes of temperament. There have been rows and
reconciliations and even now there is hope that the strong
attachment they still feel for each other will keep them together.

Tatjana’s nanny for the first months of her life was an
experienced maternity nurse, Miss Wilson, in her forties, who is
acknowledged to have been admirable in every way. The three more
recent nannies have been younger women, more of the parents’ own
age. They seem to have been treated with an easy familiarity which
made them a close confidante of both parents, of the mother in
particular, and left them with an ascendancy unusual in the
employment relationship. This has been particularly true of the
most recent nanny, Miss Bernadette Grant. She was employed by the
parents as Tatjana’s nanny from mid-July 1988.

The events giving rise to the current application began in
the Christmas period of 1988. The family was staying with the
father’s parents in England. The paternal grandmother told me that
she made this the occasion of a good talking-to for both parents,
telling them she thought they were being selfish in putting the
demands of their own unusual lifestyle with its hectic
professional and social commitments above the needs of their
child. To their credit, both parents took that to heart, but it
unfortunately tended at the same time to sharpen their
differences, because of their diverging views as to how the
problem was to be resolved.

The father’s band was at this point due to embark on a world
tour which would take in first the United States of America and
then the Far East, ending with a stay of as yet undecided length
in London from the middle or end of April 1989. As part of those
plans the parents had arranged to rent or borrow a New York
apartment temporarily from a fellow member of the father’s band.
The family moved into it towards the end of January 1989, after
spending some time in a New York hotel and also a spell in
Florida, part of which was passed with the maternal grandparents
who live in that state.

Earlier that month the mother had consulted a speech
therapist in New York, with whom she had discussed arrangements
for sessions which would also be attended by the mother. Plans to
finalise those arrangements with the speech therapist were
frustrated by Tatjana’s eventual removal to England.

On 2nd, 5th, 6th and 7th February 1989 the mother, Tatjana
and Miss Grant accompanied the father on engagements in Los
Angeles (California), Portland (Oregon), Vancouver (British
Columbia) and Seattle (Washington). During this period an acute
difference arose between the parents. The father was due to leave
shortly for the Far East. He said he wanted Miss Grant and
Tatjana to go to the London home and await his return there in
April. The mother was free at her choice, he said, to accompany
them or join him for a spell in the Far East. The mother was
adamant that she wished to remain, during the father’s Far East
tour, in New York with Tatjana and her nanny. the father in the
end reluctantly agreed to that course. In doing so he made it
clear, however, that he regarded Miss Grant’s presence as being
essential to look after his interest, to maintain surveillance and
to report back to him. He told Miss Grant privately that if the
mother was, as he expressed it, “mean” to her, she was to report
to him straight away.

Very shortly after the father’s departure for the Far East
there was a furious row between the mother and Miss Grant. It was
started, or at least escalated, by a statement by the mother that
the time had come for her to do what so many people had been
urging her to do for so long and devote more of her time to the
day to day care of Tatjana . She proposed to act straight away,
she said, towards weaning Tatjana from her dependence upon Miss
Grant by giving the nanny the coming weekend off and inviting the
mother’s sister to stay. Miss Grant saw that as a threat to the
arrangement which had been approved by the father and as an
affront to her own dignity and the view she had by then taken of
her authority. She telephoned the father in the Far East in a
state of considerable agitation. He authorised her to take Tatjana
immediately to England, with the consequences which I have already
described.

When this hearing began on 15th February Miss Scotland
appeared in the dual role which the mechanism of the Convention
imposes on all those who represent a party applying for a return
order. Their instructions derive in part from a parent who is
likely, in the nature of such cases, to be extremely anxious and
upset and in part from the Lord Chancellor, as the central
authority in England for the purposes of the Convention. He is
bound, in the nature of his office, to be principally concerned
with the administrative and policy implications of such cases.
That imposes on the applicant’s representatives a difficult
dualism and I am grateful to Miss Scotland and her instructing
solicitor for the efforts they have made to combine those
functions in the present case.

Mr. Swift had warned Miss Scotland before the hearing began
that he was proposing to challenge the wrongfulness of Tatjana’s
removal within the terms of the Convention on the ground that the
child was not, as he would contend, habitually resident in New
York at the date of abduction. It was also plain from the
affidavits that had by then been sworn by Miss Grant and her two
immediate predecessors that it was proposed, as a second-string
argument, to contend that if the Convention did apply so as to
make the removal unlawful, the court had a discretion under
article 13 not to make a return order on the ground of alleged
grave risk to the child’s physical and emotional welfare if
returned.

Very sensibly and understandably, counsel decided not to take
up time on the niceties of onus of proof or the right to begin.
Miss Scotland might, strictly speaking, have been entitled to say
that, since she had the benefit of a certificate from the central
authority in New York addressed to the central authority in
England to the effect that the removal had been wrongful within
the terms of the treaty and since the onus of proving grave risk
under article 13(b) lies undoubtedly on the party alleging it, Mr.
Swift ought to be have been made to assume the onus of proof under
both heads. As it was, Miss Scotland undertook the opening of the
case under both those issues without prejudice to any general
issue as to where the burden of proof lay.

The case thus proceeded for three days of evidence on those
two issues: was Tatjana habitually resident in New York at the
date of her abduction; and could Tatjana be at grave risk within
the terms of article 13 if she was returned?

The father, as I have said, did not give evidence, personally
or by affidavit or statement, on either issue. He relied on the
phalanx of young nannies, Miss Grant and the two predecessors whom
she had contacted on her arrival in Britain and who have sworn
affidavits. His mother also gave evidence on her son’s behalf,
though with obvious reluctance and with understandable distress.
The mother gave evidence herself, with the support of the family’s
London general practitioner and a friend. An affidavit from
another friend of the mother was not challenged. Each side made
generous use of the opportunity to supplement the affidavit
evidence by questions in chief; and cross-examination of the
principal witnesses, the mother on one side and Miss Grant on the
other, was extensive. Evidence did not close until fairly late in
the afternoon on Friday, 17th February and the speech of leading
counsel for the father was still by no means concluded when the
court rose for the weekend. Unfortunately Mr. Swift was compelled
at that point to ask to be released from the case because of other
commitments already arranged for this week, and the burden fell on
his junior, Mr. Carden, to conclude the argument for the father.
He has discharged that admirably and I am most grateful for the
able assistance he has given the court, the more so as the burden
which he was required to assume turned out to be appreciably
heavier than he can ever have expected as a result of the
developments which I must next mention.

Unknown at the time to this court or to the father’s
advisers, steps were being taken last week in New York by the
mother’s English and United States advisers, concurrently with
this hearing in England, to obtain a declaration from a judge in
New York that Tatjana’s abduction had amounted to a wrongful
removal within the meaning of the Convention. That would of course
inevitably involve an adjudication in New York upon the first of
the two issues that were still in the process of being so
strenuoulsy contested before myself in England, namely the
question whether Tatjana was habitually resident in New York at
the date of abduction. There was an ex parte hearing before Judge
Elliot Wilk in the Supreme Court of the State of New York on that
same Friday, l7th February, upon which we had reached the stage in
England of closing speeches. Judge Wilk made two orders. One was a
simple and unqualified order (to which it will be convenient to
refer as “the unqualified order”) in the following terms:

“It is hereby ordered and declared as follows:

1. New York was the habitual residence of the child Tatjana
Bates immediately prior to February 9, 1989.

2. On February 9, 1989 Tatjana Bates Rhodes was wrongfully
removed from New York in breach of actually exercised custody
rights of plaintiff mother.”

The other was an order (which I shall call “the order to show
cause”) requiring the father, on the following Wednesday, 22nd
February 1989, to show cause before the New York court why an
order should not be made in the form inter alia of precisely the
relief already granted by the unqualified order. The operative
part of the “show cause” order declared that the court “had reason
to believe” that the child was habitually residing in New York at
the material date, awarded temporary custody of the child to the
mother, and directed that the order be transmitted to the Family
Division in England.

Mr. Carden first learned of the existence of these orders at
9.30 last Monday, 20th February, and copies were handed in to me
when this hearing resumed at 10.30 that day. Mr. Carden continued
with the task of concluding the closing speech on behalf of the
father upon the basis of the issues as they had stood at the start
of the English hearing. He reserved the right to deal with any
submission that might be made by Miss Scotland in regard to the
recently obtained New York orders until after she had made clear
exactly what those submissions were.

In the course of her reply Miss Scotland made a fresh
submission, which had not of course been previously open to her,
namely that the first issue, habitual residence, was no longer
open for determination in England but was concluded by the New
York orders. There was obvious force in that submission, but when
its implications came to be further argued on the Tuesday morning
of his week there was evident doubt as to how final or definitive
Judge Wilk had intended his order to be. The unqualified order,
standing alone, had all the appearances of a final order, but the
simultaneous “show cause” order threw doubt on that and suggested
that it must have been intended as an interim declaration pending
a final determination at the hearing fixed for 22nd February.
Since we were by then at 21st February, I decided that the best
thing in all the circumstances would be to adjourn the case for
the 48 hours necessary to enable that inter partes hearing in New
York to take place. I anticipated, I confess, that the result of
that step would be that there would come into being in New York an
order sufficiently definitive and final to enable Miss Scotland to
further her submission, which clearly involves a general principle
of some importance, that when the wrongfulness of a removal has
become res judicata in the requesting country, it binds the courts
of the addressed country so as to make the issue of wrongful
removal res judicata in the courts of both the requesting and the
requested state.

I gave a reasoned judgment for my decision to adjourn,
including a brief outline of the state which the proceedings had
by then reached in England, and both counsel helpfully agreed a
note of my judgment so that it could be faxed to New York and
placed before Judge Wilk for any assistance that it might prove to
have for him.

It was learned, when the English hearing resumed today, that
when the inter partes hearing took place in New York yesterday
there was fairly protracted legal argument on both sides. Again
the judge made two orders, the detail of which and their
interrelation to each other is still confusing, at least to minds
unused to the technicalities of New York law. The gist, however,
is plain and is comprehended in these words quoted from paragraph
1 of one of the orders of 22nd February. It reads as follows:

“This court would be required to hold a factual hearing with
witnesses and submissions by the parties in order to make a
final determination under article 15 of the Hague Convention,
and such hearing could not commence before March 1, 1989.”

Mr. Thompson of counsel, who in the enforced absence today of
Miss Scotland, has come to the court’s assistance on behalf of the
mother, has made common cause with Mr. Carden in reaching the
sensible decision that it would not be in anyone’s interest to
adjourn this application yet again and await a further-hearing in
New York. Counsel are satisfied that it is implicit in Judge
Wilk’s latest orders that no discourtesy or breach of the spirit
of of the letter of the Convention would be involved if I were to
proceed here and now in England to decide the issue of wrongful
removal on the basis of habitual residence in the light of the
evidence which I have heard on that issue. It is implicit in the
decision of the Court of Appeal in Re C. of 14th December 1988, so
far reported only in The Times newspaper, that the courts in
England have jurisdiction, at all events in the absence of any
definitive finding of wrongful removal in the courts of the
requesting state, to determine an issue of wrongfulness for
themselves. It is thus agreed that there is no longer scope in the
present case for Miss Scotland’s submission as to res judicata.
That will have to be determined on some other occasion.

For present purposes this case is back, therefore, where it
started when it was first opened. I have first to decide the issue
of Tatjana’s habitual residence, and then (but only of course if
that issue is resolved in the mother’s favour) the question of
grave risk.

The eleventh edition of Dicey and Morris on The Conflict of
Laws contains the following helpful passages at page 166 and
following, on the topic of habitual residence. I will quote two
brief extracts.

“‘Habitual residence’ has long been a favourite expression of
the Hague Conference on Private International Law. It appears
in many Hague Conventions, and therefore in English statutes
giving effect to them, but is increasingly used in statutes
not based on international conventions. One of its first uses
at The Hague was in the context of the custody of children,
largely because of the artificiality of domicile as applied
to young children. No definition of ‘habitual residence’ has
ever been included in a Hague Convention. This has been a
matter of deliberate policy, the aim being to leave the
notion free from technical rules, which can produce rigidity
and inconsistencies as between different legal systems.”

Then a little further on:

“It is greatly to be hoped that the courts will resist the
temptation to develop detailed and restrictive rules as to
habitual residence, which might make it as technical a term
of art as common law domicile. The facts and circumstances of
each case should continue to be assessed without resort to
presumptions or pre-suppositions.”

Although that decision was made in the different context of
section 5 of the Domicile and Matrimonial Proceedings Act i9?3, I
follow the judgment of Bush J. in Kapur v. Kapur [1984] F.L.R 920
in holding that there is no real distinction between ordinary
residence and habitual residence. The governing principle for
ascertaining the elements of habitual residence is contained in
the speech of Lord Scarman in R. v. Barnet London Borough Council
ex parte Shah [1983] 2 A.C. 309, where he says, at page 314:

“and there must be a degree of settled purpose. The purpose
may be one or there may be several. It may be specific or
general. All that the law requires is that there is a settled
purpose. That is not to say that the propositus intends to
stay where he is indefinitely. Indeed his purpose while
settled may be for a limited period. Education, business or
profession, employment, health, family or merely love of the
place spring to mind as common reasons for a choice of
regular abode, and there may well be many others. All that is
necessary is that the purpose of living where one does has a
sufficient degree of continuity to be properly described as
settled.”

When the facts of this case are analysed with those
principles in mind, the result, in my judgment, is as follows.
The New York apartment was taken on originally as a temporary base
for Tatjana while the father was proposing to be in the Far East;
it being common ground that the traveling, climate changes and so
on would be too unsettling for it to be possible for the child to
accompany her father there. The New York plan had acquired a more
settled purpose by the time that the parties were in Seattle and
Vancouver in the first few days of February, and the father’s
departure on his Far East tour was immediately imminent. New York
had by then become the city in which the mother wanted to stay and
in which the father had reluctantly agreed to allow her to stay
with Tatjana, at least until the band returned to London in April
1989. The extent to which New York would feature in their lives
thereafter would depend very much on the decision which the
parents then made about their personal lives, both generally in
relation to the future of their marriage and specifically in
relation to the problem of reconciling Tatjana’s special needs
with the demands of the father’ working career. In the mean time
Tatjana was to receive speech therapy in New York in which the
mother would participate.

The residence whose habituality has to be established is that
of the child. In the case of a child as young as Tatjana the
conduct and the overtly stated intentions and agreements of the
parents during the period preceding the act of abduction are bound
to be important factors and it would be unrealistic to exclude
them. I am satisfied that the arrangements that had been agreed,
however acrimoniously, before the abduction date between the two
parents for Tatjana’s care, accommodation and therapy treatment in
New York during the period of three months or so that would be due
to elapse before the father’s return to London amounted to a
purpose with a sufficient degree of continuity to enable it
properly to be described as settled. I am satisfied, in short,
that Tatjana was habitually resident in New York State at the time
of her abduction on 9th February. I am satisfied also that her
removal by the nanny was in obvious breach of the mother’s rights
of parental guardianship (jointly with the father) under New York
law, and that accordingly the child’s removal by Miss Grant was
wrongful within the meaning of article 3.

I am bound therefore by article 12 to order Tatjana’s return
to New York forthwith, unless I am satisfied that, for the
purposes of Article 13(b), there is a grave risk that her return
would expose her to physical or psychological harm or otherwise
place her in an intolerable situation. Grave risk, as the Court of
Appeal accepted in Re A. [1988] 1 F.L.R. 365, means a substantial
risk, one which is out of the ordinary.

The mother’s plans, should she obtain an order for Tatjana’s
return, would involve her staying in England for a short time to
make the necessary arrangements for Tatjana’s future care. It will
come as no surprise to anyone that the mother would not propose to
re-engage Miss Grant; any more, I suppose, than Miss Grant would
be willing to accept such an invitation. The mother would like
therefore, either to ask Miss Wilson, who is currently working in
New York, to come back to her (and she has received some
indication from Miss Wilson that this might be possible), or to
engage a new nanny to be vetted by the family doctor, Dr. Wheeler,
who gave evidence and is a physician in whom both sides have
confidence.

In deploying the father’s arguments that the child would be
at grave risk if returned under the various heads mentioned in
Article 13(b), Mr. Carden was faced with the difficulty that the
father has not seen fit to lay evidence before this court
personally or by affidavit affirming his own belief that Tatjana
would be at risk if returned to her mother. For this the father’s
case is dependent virtually entirely on the evidence of the
various nannies about outbursts of temper on the mother’s part and
alleged episodes of her rough or inappropriate handling of the
child. I am wholly satisfied that the evidence of the various
nannies in this regard was greatly exaggerated and that Tatjana
would be under no risk of physical injury, grave or otherwise, if
she were to be returned to her mother’s care. Under the head of
psychological harm, Mr. Carden relies upon the child’s speech
difficulties and the fact that she is undoubtedly at present
nanny-dependent, but I do not consider that really affects the
position at all because no one suggests that the speech therapy
she would receive in New York is in any way inferior to the
equivalent therapy she would receive in London, and she would have
a nanny on either side of the Atlantic anyway.

Then Mr. Carden wraps all the considerations under the
Article together and says that Tatjana would be at grave risk of
physical or psychological harm or of being placed in an
intolerable situation because the mother is allegedly prone to
take cocaine. This aspect of the case was gone into very deeply in
evidence, and I am satisfied that the true position is the
following. The mother, because of her past difficulties many years
ago, is well aware of the problems of addiction. She knows that
cocaine is an evil and pernicious drug, capable of ruining her
life as much as it is any other’s. There have been a few occasions
– and I am satisfied that they have been only a few – when the
mother has taken a line of cocaine, that is to say, snorted it,
when she has been to a late party and perhaps had too much to
drink. It is to be remembered that in the circles in which the
mother moves cocaine is, most regrettably, all too readily
available. I am convinced that the mother has formed a genuine
resolve never again to allow herself to be exposed to the least
temptation to take hard drugs and I am satisfied also that she
will stick to that resolve. She was unwise enough recently to
accept an offer of puffs on a marijuana joint from a friend, but
it made her feel giddy and she is similarly resolved to have no
further truck with soft drugs. I believe the sincerity of that
resolve also.

I am moreover satisfied that this case, distressing though it
has been for her, has shocked her into a dramatic awareness of
something that she was beginning to know already, namely that she
must plot a new course in the life of herself and her child. She
must have earlier nights and fewer parties and play a much more
significant role in the ordinary everyday tasks of child minding.

In summary, I find that there is no risk, certainly no grave
risk, that the child’s return would expose her to physical or
psychological harm or otherwise place Tatjana in an intolerable
situation. That finding means that I have no discretion under the
Act. It becomes my duty under article 12 to make an order for the
return of Tatjana forthwith. That is not to be understood as
standing in the way of the mother’s plans to remain in London
while she makes her arrangements about the future care of Tatjana,
as I have mentioned; nor, least of all, is it intended to prevent
her remaining here long enough to try to establish the
reconciliation which she still wants with her husband. I hope that
it is possible for that to take place. If it does, they will have
learned many lessons from the unfortunate events I have described.
One of them perhaps will be that nannies, as much as the rest of
us, are liable to have their heads turned if they are given too
much power, and that it would be wiser in future to stick to a
more formal relationship.

Before I leave the case there are two comments which I think
it might be helpful to make. I wholly accept that the decision
not to tell the father’s advisers or the court about the proposed
application to the New York judge last week was undertaken
responsibly and after full and careful consideration. It was
nevertheless, in my view, an unfortunate decision. These cases
are, in the nature of things, bound to involve a sense of urgency,
clients whose feelings run high, and strong apparent advantages in
tactical gains. Nevertheless, the smooth and harmonious
functioning of the Convention requires that the parties’ advisers
should, sometimes perhaps against their natural inclination, be
scrupulously candid and open in their dealings with their
opponents and the court, bearing in mind that they are enjoying
the privileges of a fast priority procedure.

The second comment is that the fast procedure is one already
laid down by the Act and by order 90, and it ought, for most
purposes in most cases, of itself to be rapid enough. It should
not normally be necessary for either party to attempt to
accelerate the procedure yet further by invoking interlocutory
proceedings – especially ex parte interlocutory proceedings – in
an attempt to obtain final orders on a summary or ex parte basis.
The interlocutory process is always, of course, properly available
to enable directions to be give (ex parte if necessary) for the
care and control of, and access to, the minor in England while the
hearing of the originating summons is still pending. The lesson of
this case is, if anything, that in the law things can sometimes
happen almost too quickly. Had an early date been obtained for the
hearing of the originating summons and had the parties been
willing to wait until then, there might have been time – who knows
– for the dust to settle and for the soothing influence of calm
and quiet deliberation to work its way towards the bringing about
of an amicable resolution of the issues which it is the duty of
the central authority under Article 7 of the Convention to achieve
whenever it can.

(Discussion as to costs)