Family Law Hub

EM v BK [2021] EWHC 108 (Fam)

The mother had unilaterally taken the children from Rome in July 2020. The children had not seen their father since. One child was born in England, the other in Italy after the family moved there in 2011. If not for the abduction, the children would have been interviewed by Italian social services in October 2020, ahead of the father's appeal regarding child arrangements being heard in November 2020. The Appeal Court of Rome granted custody to the father, describing the abduction of the children as "seriously harmful to their balanced emotional and physical development". The father had also commenced proceedings here under the 1980 Hague Convention in September 2020. It was not disputed that the children had been habitually resident in Italy at the time of removal. Mostyn J asked himself how the Appeal Court of Rome's interim custody order should be treated when considering the discretion not to return under article 13. He judged that "unless it could be shown that the order was made on a false basis (whether by virtue of fraud, mistake or a major unexpected change of circumstances), or that it was obtained by procedurally unfair means, then the exercise of discretion should almost invariably lead to the responsive order being given effect". The mother had not demonstrated that the children faced a grave risk so as to provide a defence under article 13(b), and although the children strongly objected to being returned to their father, in Mostyn J's view they had been subjected to indoctrination and manipulation, and thus he did not place much weight on their objections. The discretion against return would not be exercised, and the children had to be returned to Italy no later than Sunday, 14 February 2021.

Published: 25/01/2021


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