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Children

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  • The father appealed from the dismissal of his application under the 1980 Hague Convention. The judge had decided that the child was habitually resident in Australia rather than France at the date of the retention in England and Wales, and thus in her view the Hague Convention did not apply. The Court of Appeal determined that the child had been habitually resident in France, but, since it was an issue in other pending cases, Moylan LJ addressed the issue of principle: whether there was power under the 1980 Convention to return a child to a state other than that in which they had been habitually resident. In Moylan LJ's view, "the 1980 Convention applies whenever the child is habitually resident in a Contracting State, other than the requested state, at the date of the alleged wrongful removal or retention", and "there is power under the 1980 Convention to order that a child be returned to a third state". This question had been expressly considered at the time of the convention's drafting and a proposal that the return should always be to the state of habitual residence had not been adopted. To confine Article 12 as suggested would fail to protect children from the harmful effects of their abduction. While Baker LJ and Phillips LJ agreed as to the child's habitual residence in France, they declined to express an obiter view on the issue of principle. Baker LJ warned of the danger of judges thinking that the degree of integration in a second country had to be equivalent to that enjoyed in the first for a child to acquire habitual residence. Judgment, 18/09/2020, free
  • An order had been made for the nine-year-old son to be returned to Russia. The father had arranged for the child to make an application for asylum, and one of the questions to be resolved was now whether this prohibited the enforcement of the return order. Mr Darren Howe QC, sitting as a deputy High Court judge, adjudged that the commencement of an asylum application by or on behalf of a child did indeed prohibit the enforcement of a return order made under the Hague Convention 1980. No exception was available under the law even if the court had concluded that the asylum application was a sham and a tactic to delay the return order. He ordered a stay of the return order until 15 days after the tribunal's decision upon the asylum application. But if there were thus to be a significant delay, the issue of contact between mother and child in the meantime would need to be addressed. A further hearing as to this would follow. Judgment, 09/09/2020, free
  • The mother appealed from a return order made under the 1980 Hague Convention. She contended that the judge had been wrong to decide that the children were habitually resident in Germany at the date of her wrongful retention of them in England. It was submitted on her behalf that the judge had focused on whether the children had lost their habitual residence in Germany, rather than on the relevant question of whether their residence in England had acquired the requisite degree of integration and stability. In Moylan LJ's view, the appeal had to be allowed. On a proper application of the appropriate test, the children had been habitually resident in England at the date of their retention, and thus the father's application under the 1980 Convention had to be dismissed. Simler LJ and Sir Stephen Richards agreed. Judgment, 25/08/2020, free
  • The proceedings concerned a father's application for contact with children aged two and five. The mother opposed contact on the basis that the father had subjected her to domestic and sexual abuse. She now appealed from a case management decision to exclude evidence of coercive and controlling behaviour by the father towards a subsequent partner. Peter Jackson LJ, after considering the approach to be taken to similar fact evidence in civil and family proceedings, and the standard of proof involved, stated that the judge's decision could not stand. The necessary analysis concerning whether the disputed evidence should be admitted had not been carried out, and the judge had been mistaken (as had the district judge) about the stance that had been taken by the court previously. Hickinbottom LJ and David Richards LJ agreed. The appeal was allowed, the evidence reinstated, and the judge's order set aside. The case was reallocated to High Court level with case management and fact-finding hearings to follow. Judgment, 25/08/2020, free
  • The father applied under the 1980 Hague Convention for the return of his three-year-old son to Australia. The mother resisted the application on the grounds of habitual residence in England, acquiescence, and a grave risk of physical or psychological harm to the child, or his being in an otherwise intolerable situation, if the court required his return to Australia. Theis J decided that the defence on acquiescence would not have succeeded, but the mother had established that the protective measures put in place would not have been sufficient to reduce the risk to a level that fell below the Article 13(b) threshold. Either way, Theis J had already reached the conclusion that the son's habitual residence at the relevant time had been in this jurisdiction, and thus there had been no breach of Article 3 of the Hague Convention. The father's application was dismissed. Judgment, 12/08/2020, free

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