Johnson and Fowler-Winning (UK 1998) High Court of Justice, Family Division, CA 114 of 1997 13 International Abduction [UK 1998] =========================================================== 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. =========================================================== 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."