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Summary Return

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  • The father applied under the Child Abduction Custody Act 1985 for the summary return of the daughter to Italy pursuant to the 1980 Hague Convention. The mother had removed her to England in February 2021. The mother accepted that the child's views on return were ambivalent. Her defence thus focused on the issues of consent/acquiescence under Article 13(a) and grave risk/intolerability under Article 13(b). She claimed that moving to England had been the father's suggestion, to lessen the child's exposure to racist abuse. The father said that he had not agreed to a relocation in the months and days leading up to the trip to England in July 2020, and that even if he had it did not subsist many months later. Mr Teertha Gupta QC queried why the mother had left in a clandestine fashion, if the father had consented to the move. For that and several other reasons he came to the firm conclusion that the consent defence had simply not been made out. Similarly, the defence under Article 13(b) had not been made out. He found it highly unlikely that the mother would be separated from the daughter if she chose to go with her. Thus he ordered the summary return of the child to Italy. Judgment, 25/10/2021, free
  • The Latvian father made a Hague Convention 1980 application for the summary return of the two children, aged 14 and 12. The mother alleged that the father had orally agreed to the children remaining in England after she brought them there. The mother's defences were settlement under Article 12; children's objections under Article 13; consent and acquiescence under Article 13(a); and grave risk of harm and intolerability under Article 13(b). She succeeded on the first two and thus it was not necessary for the third and fourth to be considered. In Mostyn J's judgment, the physical and mental constituents of the concept of settlement had been very amply proved in this case, and the children's objections to a return were rational, reasonable and logical. He exercised the discretion granted to him under articles 12 and 13 of the Convention against a return of the children to Latvia. He commented that "many of these outward return cases under the Hague 1980 Convention have become disproportionately complex, lengthy and expensive". He urged the court to strictly apply paragraph 3.8 of the Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings (issued by Sir James Munby P on 13 March 2018), and allow oral evidence only where it was "demanded" to resolve the case justly, not "merely reasonable or desirable". As to an ex parte location order made by the father, it was Mostyn J's view that "the time has surely come to insist that the standards in the Practice Guidance concerning ex parte applications are scrupulously observed", which they had not been in this case. Judgment, 25/10/2021, free
  • The father had brought the four-year-old daughter from Georgia to England in July 2020, without notice to the mother, who now applied for the child's summary return. The remaining issues were: (1) whether the court was bound by the decisions of the Georgian courts; (2) if not, whether the child had been habitually resident in Georgia when removed by her father in 2020; and (3) what, if any, protective measures should be put in place. It was plain, said Sir Jonathan Cohen, that the court in Georgia had not ruled on the question which he was asked to determine, and thus he was not bound by their decisions. He found that on the relevant date the child had been habitually resident in Georgia, and thus he would order her return. Discussion between the parents would need to take place before a further hearing, at which he would determine the remaining practical issues. Judgment, 15/10/2021, free
  • The father applied for the summary return of the daughter to a country in which he did not live, and which was not a signatory to the Hague Convention. The application would thus be determined according to the best interests of the child, who wished to remain in London. Both parents had left extremely unpleasant messages on the daughter's mobile phone, neither parent thought twice about disparaging the other in front of the daughter, and each went out of their way to seek to persuade her that the other parent was untrustworthy. In Poole J's view, the damaging effects of their conduct was plain to see. The father's contempt for the mother infected every aspect of his case, and he was often inconsistent in his evidence. The daughter was undoubtedly now habitually resident in England, and her wish to remain was absolutely clear. In Poole J's judgment, it would have taken exceptional countervailing factors to persuade the court that it was in her best interests to be returned against her will, and in fact the balance of other factors, having regard to the welfare checklist under s 1(3) of the Children Act 1989, also weighed in favour of not making such an order. The father's application was dismissed. Judgment, 13/10/2021, free
  • Both parents were British citizens with Overseas Citizens of India status, and both had been living in India. One day before the first court hearing in child welfare proceedings brought by the father, the mother had flown their five-year-old son to England. The father now applied under the court's inherent jurisdiction for the summary return of their son to India, and asserted that this was a "hot pursuit" case. The application was opposed by the mother, who alleged domestic abuse and coercive behaviour. Cobb J reached the clear conclusion that it was in the boy's best interests to be returned to India forthwith, and for his future to be determined in the courts there. He was habitually resident in India, while his situation in England was at best transitory and fragile; for example, he was not attending school here. In Cobb J's judgement, the mother's clandestine and unilateral action in bringing the boy to England had been primarily prompted by her wish to avoid engaging in family court proceedings in India. The allegations of domestic abuse had been laid before the Indian court in the child welfare proceedings there. In his view, the risk of harm to the mother from the alleged abuse could be appropriately mitigated by the protective measures offered by the father, the fact that she could return to live with her parents, and the availability in India of civil law process (the equivalent of non-molestation proceedings). He was satisfied that the Indian court was appropriately seised of child welfare proceedings regarding the child. Judgment, 31/08/2021, free

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