UK – JOHNSON – 1998

Johnson and Fowler-Winning (UK 1998)High Court of Justice, Family Division, CA 114 of 1997
13 International Abduction [UK 1998]
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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London WC2A 2LL
Tuesday 24 Mar 1998

Before:

THE PRESIDENT
(Sir Stephen Brown)

BETWEEN: )
)
Colin Duncan Johnson ) Case Number
Plaintiff ) CA 114 of 1997
)
and )
)
Samantha Claire Fowler-Winning )
Defendant )
_________________________________)

MR. H. SETRIGHT (instructed by Messrs. Bindman Partners of
London) appeared as Counsel on behalf of the Plaintiff.

MISS P. SCRIVEN, C.C. and MR. A. McFARLANE (instructed by
Messrs. White & Sherwin cf Croydon) appeared as Counsel on
behalf of the Defendant.

MR. M. NICHOLLS appeared as Counsel on behalf of the Central
Authority.

Transcribed from the Official Court Tape Recording
by Barnett Lenton & Co.
61 Carey Street, London WC2A 2JG
Telephone: + 44 171 405-2345

JUDGMENT
(As approved by the Judge)

001 THE PRESIDENT: Derek James Johnson was born in Canada
on the 19th February of 1996. He is now just over two years
of age. His mother is Samantha Claire Fowler-Winning, who
was born in England, but in fact has lived in Canada until
her return to England, in the circumstances to which I shall
refer, last year. She lived in Canada from the age of nine.
The father is Colin Duncan Johnson, a Canadian by birth. The
mother and the father were never married, but they met in
1994, and in 1995 they began to live together in Montreal,
and by November 1996 they lived together in their own flat
in Montreal.

002 On the 19th FebruarY, 1996 Derek James Johnson was
born, and he lived with them in their flat in Montreal.

003 In fact the relationship between the mother and
father deteriorated, and the mother has said in the course
of these proceedings, and indeed from the start of the
proceedings, that the basic cause of the rift between her
and the father was his connection with drugs and friends who
dealt with drugs, using, she suggests, their flat in some
way to process or organise the business of supplying drugs.

004 The mother in fact left the father. The father and
the mother disagree about the circumstances of their
parting, but it is quite plain that it was a final parting,
and on the 10th March, 1997 the mother left Canada, bringing
Derek with her to England. That is admitted by the mother to
have been an ‘unlawful removal’ of Derek within the terms of
Article 3 of The Hague Convention.

005 On the 9th May, 1997 the father, through the Central
Authority – the Lord Chancellor’s Department in this
jurisdiction – issued an originating summons in pursuance of
the provisions of The Hague Convention requiring the court
to order the return of Derek to Canada, which was the place
of his habitual residence, and from where he had been
unlawfully removed.

006 The mother eventually submitted a form of defence to
the application, and in due course, on the 22nd July of last
year, the originating summons came on for hearing before me
in this court. Both parties were represented by Counsel. The
father was not present, being in Canada.

007 The matter was in fact then resolved by agreement
between the parties, and the mother, on advice, recognising
that there was no prima facie defence to the unlawful
removal and the mandatory requirement of Article 12 that the
child should be returned to his habitual place of residence,
agreed that he should be returned. It is right to say that
in her affidavit she had alleged that the separation from
the father had been as a result of the father “setting up a
room in our home for use by his friend Chris Johnson (no
relation] as an office from which to run their drug
supplying operation”. She claimed that she made it plain
that that was totally unacceptable, “and I left home with
Derek”, and then she decided after leaving that she would
not return.

008 Other complaints were made. It was initially sought
on paper to raise the possible ‘defence’, if I may so term
it, under Article 13, sub-paragraph (b), that there was a
grave risk that the return of the child to Canada would
expose him to physical or psychological harm or otherwise
place the child in an intolerable situation, but plainly on
advice the mother recognised that, in the light of certain
undertakings which were forthcoming from the father, that it
would be difficult to substantiate, and she then agreed that
there should be an order requiring the return of Derek, whom
she then intended to accompany back to Canada.

009 However, matters developed differently. The mother
did not comply with the terms of the order and indeed sought
to delay, and if possible to set aside, the effect of the
court’s order. In fact she was eventually ordered to
deliver the child to the Plaintiff’s solicitors’ offices
following an inter-partes hearing on the 5th November last
year before Mr. Justice Stuart-White. The order was that she
should hand over the child to the father or hIs agent for
his return to Canada at his solicitors’ offices on the 19th
November of last year.

010 What had happened in the interim, since the hearing
before this court in July, was that the mother said that she
had received threats that if she returned to Canada she
would be in danger – in danger of violence from the
colleagues of Mr. Colin Johnson, who, she alleged, had taken
part with him in dealing in drugs. The matter was put
dramatically that, through a friend, who has later been
identified as Nikki Buchanan, the threat had been made to
her that if she went back to Canada she would be in danger
of her life, but that if she remained In England she would
not be in danger, the implication being that those who were
initiating the threats were afraid that if she returned and
told her story about drugs to a court, albeit a family
court, in Quebec, it would be likely to react to the
disadvantage, to put it euphemistically, of the colleagues
of Mr. Colin Johnson, the father. The mother said that that
was a genuine threat, which indeed she claimed had been
overheard in part by her sister, and that she was so
terrified that she actually went to court on the 5th
November of last year, telling the judge that she would have
to leave her son and allow the little boy, whom she loved
and who clearly had only had her care for him, to go by
himself back to Canada – on the face of it an extreme
situation.

011 That was not the end of the story because a more
remarkable event took place; she went in person to the Court
of Appeal. Her solicitors had advised her that there was no
further step that they could legally take – no appropriate
ground of appeal – and, ‘in person’, it appears she so
impressed the members of the Court of Appeal by her bearing
and what appeared to be the plain terror of the threat which
she claimed had been made, that the Court of Appeal allowed
her appeal and ordered that the case be reheard on the issue
as to whether there was a justifiable defence under Article
13(b) before this court. The Court of Appeal further ordered
that there should be oral evidence, which is an exceptional
step to take in a case under The Hague Convention; that is
to say, oral evidence from both the mother and the father.
Plainly the Court of Appeal could not come to any concluded
view as to whether the mother’s fears were Justified; it
would require consideration by a court hearing oral
evidence. And that is how the matter has come before me
today.

012 Both the mother and the father are present and both
have given oral evidence. They are both represented by
counsel, who have presented their cases with consummate
skill and relevance. They have indeed placed before the
court all the relevant considerations. The court has been
greatly helped by written skeleton submissions by each
party, by a helpfully assembled volume of documents which
has almost reached, i think, the 300 page mark, and by their
oral submissions.

013 The mother has given evidence and has been
appropriately cross-examined by Mr. Setright, counsel for
the father, who has put to her in plain terms that she has
made up – invented – the story of threats to her life which
she says have led her to believe that she would not be safe
if she returned to Canada, and he has submitted that that is
a situation which has come about because she has sought
every possible means of avoiding having to return to Canada
with the little boy, Derek. On the other hand, Miss Scriven,
Q.C. has cross-examined the father about the mother’s
allegatIons and about the history of their relationship
together, and in particular about the allegation that the
father was involved with drugs.

014 I have to say that the mother’s account seemed at
first sight, to be somewhat over-dramatic, but she did not
give me that impression when she gave evidence. I believe
that she is quite sincere in believing herself to be at
risk. Her evidence was examined in great detail so far as
the alleged threats were concerned. The threats were
conveyed to her, it is said, by a former friend, Nikki
Buchanan, whose name she had given to the Court of Appeal,
placed in a sealed envelope because she said she was afraid
of the consequences to that person. The Plaintiff has
however filed an affidavit sworn by Nikki Buchanan, in these
proceedings in which she denies that she has relayed any
threat. She acknowledges that she has known of course the
mother and the father, and knows the people who are
mentioned as being the authors of the threat, but she denies
relaying it.

015 The father’s evidence was very revealing indeed. He
had denied in his initial affidavits having done anything
with regard to drugs, and he blamed the separation upon
differences with the mother. He denied all suggestions of
violence, and in paragraph 10 of his affidavit, at page 87
of the bundle, he referred to paragraph 10 of the mother’s
earlier affidavit relating to drugs, and this is what he
said in paragraph 10 at page 87:

“The contents of this paragraph are completely
untrue. I never supplied a room to my friend
Chris Johnson for the supply of drugs, nor did
I ever deal in drugs in any way. The Defendant
[i.e. the mother] did not move out at this
time.”

016 In point of fact, in his evidence today when cross-
examined the father has admitted that he contemplated – that
is how he put it – taking a part in dealing in drugs, but
not himself supplying drugs, as he was at pains to
emphasize. However, in a note which is to be found at pages
67, 68 with a typed copy at page 68A of the bundle of
documents, he produced what he said was a letter which he
was going to write to Chris Johnson, and I again say no
relation but a friend from childhood, in relation to the
possibility of some drugs-related partnership. It begins

“Ever since I’ve known you I’ve given to you
financially. When we first started hanging out
I spent all my money for us to go out, even my
rent money. Then you had something to do with
me being robbed. When you were upset because
of Jasmine? I let you live with me and spent
every last penny I had on supporting us. When
you were working at The Cradle [a nightclub in
Montreal] and you needed help because of heat
from the police I helped you and you gave me
the highest risk, lowest money nights. Even
as recently as Florida you took me for US$300
[430 Canadian dollars]. Now I ask you to do
something for me whereby in the short term it
will cost you but in the long term you will
benefit. I’ve only given the number to three
people because I wanted to see if you would
try and back out. You mentioned that I
couldn’t do everything that you did, and so
50% was perhaps too much, and you can’t really
afford it at this point. So I think 25% is
fair as long as I can’t drive. When I get my
license then full partner, but I want to be
treated as a partner and for you to stop
trying to stay above me. If you want to try
and offer me some deal to supply me, like you
offer other people, then you can go fuck
yourself. You want to be my supplier, fine,
but you’ll no longer be my friend.”

017 Mr. Johnson’s account of that is that he proposed to
write a letter in those terms, and that it did relate to
drugs, The reference “I helped you and you gave me the
highest risk, lowest money nights”, was a reference
apparently to an occasion when he had helped Chris Johnson
at The Cradle Nightclub to avoid being arrested by the
Police who were looking for somebody of his description in
relation to drugs, but he says that he was not proposing to
sell drugs himself but merely to assist by giving the
telephone number for Chris Johnson to be put in contact with
customers. He claimed in h1s evidence that it was marijuana,
and that it was not in a substantial way – some $200 or so a
week was the amount which he thought would be involved
perhaps as his share. But, quite plainly, he acknowledged
that he was involved, in my judgment, with the drugs scene.
He said, “I wanted a couple of hundred dollars a week”.

018 As for Mr. Chris Johnson, he said he had many little
customers. “He just drove round and sold to people, but he
didn’t use my flat. Nikki Buchanan worked for Peter Stewart.
He used my back room and I paid for the telephone”, and he
was working with Chris Johnson, but he said, “They sold
costume jewelry from my back room”, and he claimed that
Samantha (the mother) and he himself had decided to rent the
room together. But he agreed that Samantha, the Defendant,
the mother, was very anti the drugs trade.

019 I have formed the view that Mr. Johnson was an
untruthful witness and a wholly unreliable witness. I
believe he is more heavily involved with the drugs scene
than he has admitted. It is quite clear to me that Chris
Johnson and Peter Stewart are in fact involved in the drugs
scene. I do not believe the story about costume jewelry,
none of which apparently appeared on the premises. If one
were going to sell costume jewelry it would have to be
available, one could expect, for the purposes of marketing
it.

020 Mr. Colin Johnson made an interesting admission. As
to Mr. Chris Johnson and helping him he said, “Well, I
protect my friends”. One feature of this case which is, in
my view, significant, is that no affidavit from either Chris
Johnson or Peter Stewart has been filed. Mr. Colin Johnson
said that Chris Johnson decided not to get involved, and
accordingly did not swear any affidavit, and as to Peter
Stewart, “I understand that he consulted an attorney and he
was not asked to give an affidavit.”

021 As to whether or not he had shown the mother’s
affidavit originally in which she mentioned the drugs matter
to either of these people, he said that he had not done so,
but he had discussed it with Chris Johnson but not with
Peter Stewart, but he understood that Peter Stewart knew
about the mother’s allegations. It is apparent to me that
the mother is to be believed when she alleges that they were
involved in the drugs scene, and I believe her evidence that
it was this matter in relation to drugs that caused the
breach between herself and Colin Johnson.

022 The question arisen in this case as to whether she
was in fact threatened and, if so, whether she was genuinely
placed in fear. There have been endeavours to discover
through the Child Abduction Unit from the Police in Montreal
whether there is “anything known”, to use the time honoured
phrase, about either Mr. Colin Johnson, or Chris Johnson, or
Peter Stewart. The inquiries have proved negative in the
sense that none of them has any criminal record, to the
knowledge of the Police, and the inspector giving the
information from the Montreal surveillance division is not
aware of any dealings of the kind which the mother has
alleged by any of these men. But he does say that, so far
as Christopher Johnson and Peter Stewart are concerned, “We
do not have these persons’ dates of birth, which makes it
difficult to conduct precise research into their links with
criminal cells. The persons bearing these names, who may be
residing in Montreal, do not have a criminal record.
However, given that Mr. Colin Johnson is not linked to any
criminal investigation, whether with these individuals or
otherwise, the issue is without any foundation.”

023 I do not believe it is without foundation because Mr.
Colin Johnson has now made it perfectly clear to this court
that he has been involved in drugs, although he would say
only on the periphery, but I believe that he was much more
involved than he has admitted. Clearly the Police in
Montreal are not aware of any of this, and that may well be
a matter which would give rise to apprehension on the part
of Chris Johnson, and Peter Stewart in particular, for, on
Mr. Colin Johnson’s evidence, Chris Johnson himself is
certainly involved, or has been involved, in drugs, and
would be an appropriate subject for investigation.

024 I believe the mother when she says that the threat
was communicated to her. It may not have been in such
dramatic terms in reality as to actually threaten her life,
but I have no doubt that she is and was quite genuinely
affected by what she perceived to be a real threat, and that
explains how she took the unusual, and indeed courageous,
step, in my view, of actually going herself to the Court of
Appeal and making the plea which plainly influenced that
court in requiring that this matter be heard by this court
today, so that an appreciation and assessment of the
situation could be made on oral evidence.

025 As I have said, I believe the mother; I do not
believe the father. I believe that there is, and has been, a
drugs culture in Montreal. I believe that the flat was in
fact used for that purpose, and that the mother left the
flat because of that association. In terms, I believe, that
she has justified her fear.

026 How does that leave the matter under Article 13(b)?
In ordinary circumstances a mother’s refusal to accompany
her child back to the place of the habitual residence from
which the child has been unlawfully removed is not a valid
or acceptable reason for not making an order. In most cases
a mother can be reassured by appropriate conditions as to
safety so that the child will not be placed at risk, and
thus can return in those circumstances.

027 I regard this case as being very different. I think
that there has been a genuine threat to the mother which has
put her quite obviously in fear. I believe that she is in
fear for her safety if she returns to Montreal. It is not a
question of not trusting the Police, although she has said
she does not believe that they could afford her the
protection which she would require. It is not a question of
that. The Police are unaware, so it seems, of the drugs
connection of these people at this stage. I believe that the
mother is genuinely in a state in which it would not be
right to expect her to return to Montreal at the present
time, and if that is so it would be, in my judgment, wholly
inappropriate to send this little boy of two years back
without his mother to, in effect, to a father who, I
believe, has been, and probably still is, concerned in the
drugs scene. I do not believe that the child could properly
be placed in that environment.

028 I say that, having looked at the parental report
which has been obtained from Montreal, which has the caveat
that all the information in effect came from the father
himself. I do not believe that this child should be
returned because I think he would be placed in an
intolerable situation if he were to go back alone, as the
mother at one stage contemplated might be inevitable. This
boy – a little baby as he is – should not be separated from
his mother, and I believe that the mother justifiably
declines to return at this stage.

029 I therefore find that the defence under 13(b) is
established, and in the exercise of my discretion I shall
not order the return of the child to Canada.

030 I wish to say this, that I have very much in mind the
terms of Article 1 of The Hague Convention, which states
that the objects of the present Convention are (a) to secure
the prompt return of children wrongfully removed to or
retained in any contracting state, and (b) to ensure that
rights of custody and access under the law of one
contracting state are effectively respected in the other
contracting states.

031 However, for the reasons which I have given, I find
that in this exceptional case Article 13(b), in so far as
the intolerable situation provision is concerned, is made
out, and I decline to order the return of the child to
Canada. Any further proceedings in relation to his long-
term welfare will therefore have to take place in this
jurisdiction in the immediate future if such proceedings are
to be contemplated.

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Comments by William M. Hilton, CFLS

I would respectfully disagree with the learned judge. I
believe the question should be “. . . whether she was in
fact threatened and, if so, whether or not there was any
objective basis for this fear.” That fact that she may have
felt threatened is not relevant.

To quote from C v C (Abduction; Rights of Custody) (UK 1989)
[1989] 2 All ER 465: “Is a parent to create the
psychological situation, and then rely upon it? If the
grave risk of psychological harm to a child is to be
inflicted by the conduct of the parent who abducted him,
then it would be relied upon by every mother of a young
child who removed him out of the jurisdiction and refused to
return. It would drive a coach and four through the
Convention, at least in respect of applications relating to
young children. I, for my part, cannot believe that this is
in the interests of international relations.” With due
respect to the court, and I hold the President Sir Stephen
Brown in the highest regard, permitting the abducting parent
to create an exception by his or her subjective fears and
feelings, would “. . . drive a coach and four through the
Convention.” There is no reason to believe that the
Montreal courts and police, once alerted to the problems of
th is case, cannot provide adequate protection for the
mother and the child. As was said in the case of Marriage
of Murray and Tam, Director of Family Services (ACT)
(Australia 1993) 16 Fam LR 982: “It would be presumptuous
and offensive in the extreme, for a court in this country to
conclude that the wife and the children are not capable of
being protected by the New Zealand Courts or that relevant
New Zealand authorities would not enforce protection orders
which are made by the Courts.” Accord: Lynn and Lynn (New
Zealand 1995) Wellington District Court No FP (085) 354/95.

The Court states that he believes the mother and while there
certainly is evidence to show that there is a serious
problem concerning this matter, I am mindful of the comments
of the justices in Doe v. Superior Court (Cal.App. 2 Dist 1
Div 1990) 222 Cal.App.3d 1406, 1411: “If we were
screenwriters drafting a script based on the history of
Polanski’s conviction and flight from punishment,
incorporating the civil and criminal aspects of his actions,
we would surely create a scenario where all the characters
get their “just deserts” without regard to the protective
safeguards of the Constitution. However, as jurists, we are
bound by constitutional principles and must apply them
evenhandedly, regardless of our personal opinions of any of
the litigants.”

The court goes on to state that in the normal course of
events the mother’s refusal to return with the child could
not be used as a basis under Art. 13(b), but then states
that this is a “special case”. The court opine’s that since
the Montreal Police were not (in the past) aware of the
drugs scene, then they would provide little, if any
protection. I would respectfully disagree. If the police
were not aware of this in the past they certainly are now as
a result of this case and it should have been the task of
the court, sua sponte, to ascertain whether or not the
Montreal courts and police could now provide the protection
the court felt was necessary.

If they could not then well and good, the children would not
be returned. See Friedrich v Friedrich, 78 F.3d 1060, 1064
(6th Cir. 1996) on this point.

Since, however, the presumption of The Convention is that
the children are to be returned, it would seem, in my
opinion, that the extra step of consulting with the court in
Montreal should have been taken by this court. See Diab vs
Benoit (Canada 1996) Prov. of Quebec, Dist. of Terrebonne No
700-04-001386-967 for a good example of this technique.

The court does acknowledge, in the last few paragraphs, that
“normally” the children would be returned, but this is an
exceptional case. I would argue that, as a result of
decisions like the above, that this “exceptional case” will
be argued in any matter where an Art. 13(b) argument can
even remotely be supported.

The court then, in its last paragraph (again in my opinion)
defeats the purpose of The Convention in holding that
proceedings for long term care of the children will take
place in England – where there is virtually no evidence of
the parenting abilities of either parent.

To quote from No 34 of the Perez-Vera report: “In fact, the
Convention as a whole rests upon the unanimous rejection of
this phenomenon of illegal child removals and upon the
conviction that the best way to combat them at an
international level is to refuse to grant them legal
recognition. The practical application of this principle
requires that the signatory States be convinced that they
belong, despite their differences, to the same legal
community within which the authorities of each State
acknowledge that the authorities of one of them – those of
the child’s habitual residence – are in principle best
placed to decide upon questions of custody and access.”