Habitual Residence – Art. 3
For the Convention to apply the applicant father had to show that the children had acquired a habitual residence in Italy between 15 July 2009 and 4 April 2010. It was the mother’s case that she had been bullied into agreeing to relocate to Rome, and that she was profoundly unhappy for most of the time that she was there.
She submitted that the time in Italy should be regarded as an “extraordinary sojourn” for the children. The trial judge concluded that when the period as a whole was assessed, the mother’s will was not so overborne that the children’s presence did not amount to habitual residence.
He held that notwithstanding the effect of the domestic abuse it would be a misunderstanding to regard the mother as someone who had lost her free will to such an extent that she was not responsible for her actions.
Grave Risk – Art. 13(1)(b)
The mother submitted that she could not bring herself to go back to Italy with the children, were a return order to be made. The trial judge accepted this submission and ruled that such an outcome would undoubtedly expose the children, one of whom had an autistic spectrum disorder, to a grave risk of emotional harm.
The trial judge did not find that there were any demonstrated or potential protective measures that could be taken to protect the children; the undertakings offered could only supply a thin layer of physical support in the circumstances of the family, whilst any available Italian legal processes could not provide relief from worry and insecurity.
He concluded that in the very unusual circumstances of the case the mother’s acute emotional predicament, for which the father bore heavy responsibility, and the very particular needs of the autistic child amounted in combination to circumstances in which a return order would create a grave risk of emotional harm to them and that it would place them in an intolerable situation.
Human Rights – Art. 20
The trial judge accepted in the alternative that were the mother to return, it would be at heavy cost to her own right to respect for her family life. He held that the cumulative effect upon her of events up to April 2010 was such that she would be highly emotionally unstable and vulnerable and that would struggle to meet the children’s needs.
She would be a single parent, living away from her parents and looking after young children, while returning to a flat where she has been the victim of serious domestic abuse. She would be in difficulty obtaining work, due to the age of the youngest child. There would be significant financial difficulties. The trial judge further considered that the father would seek to re-unite with the mother in Italy, and were this to occur, it would be disastrous for the children.
The trial judge held that he did not read Neulinger as a warrant for approaching the Hague Convention exceptions broadly, liberally, or substantially differently from present established practice. He held that if the issue had arisen, he would not have accepted that Neulinger required the court to transform its approach to Hague Convention proceedings, whether in terms of principle or procedure.
In particular, he did not believe that the true effect of the decision was to require the court to carry out “an in-depth examination of the entire family situation” in each and every case: to do so would defeat the very purpose of the Convention.
If wrong in this assessment of Neulinger, the trial judge noted that there would be conflict with established binding authority in England and Wales. Were this the case, he questioned whether, as a matter of English law, Neulinger would have to be followed on the basis that it did not represent the European Court’s clear and consistent jurisprudence.