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Hague Convention 1980

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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 applied pursuant to the Hague Convention 1980 for the return of the three children (aged 5, 3 and 2) to Sweden, where they were habitually resident and had lived with the mother. The parents had shared joint custody, but the mother had removed them, without proper notification, to England, then Iraq, then back to England. The mother alleged domestic abuse during their marriage, and that the father and his family had previously abducted two of the children from her. She was described as having an abject fear of returning to Sweden, and the oldest son was said to share that fear. In Holman J's view, there was no doubt that she had abducted the children within the meaning and objects of the Hague Convention. If the father's alleged abduction of the children had been the trigger for removing the children, the circumstances and context of the case might have appeared markedly different, but following that incident she had been able to live with the children in Sweden for two years without molestation or interference from the father. None of her allegations came close to establishing an Article 13(b) defence. He ordered their return to Sweden forthwith, subject to various undertakings offered by the father. Judgment, 14/10/2021, free
  • The mother had wrongfully retained the son in England at the end of an agreed six-month visit, and then, after a court-ordered return to Ukraine, she had wrongfully removed him to England. In Hague Convention proceedings intended to secure his son's return, the father applied for disclosure of material generated during the child's successful application for asylum in England. This material, the father argued, formed the basis upon which he was being denied a remedy in the Convention proceedings. Prior to asylum being granted, orders had been made (and upheld) requiring the child's return. The question now was whether the court had locus or jurisdiction to take any further steps in the 1980 Convention proceedings or if they had come to an end by operation of law. Roberts J acknowledged the father's frustration at being unable to enforce the orders which he had secured, and the potential unfairness of an asylum process in which he had no right to see or challenge the evidence submitted. However, she dismissed the application for disclosure of the asylum file, describing it in part as little more than a fishing expedition into the prospects of a collateral challenge to the Secretary of State's decision. The child's Article 8 rights, those of his mother and the wider policy considerations underpinning the confidentiality of the asylum process tipped the scales firmly in favour of refusing disclosure. Different considerations might apply in proceedings under the Children Act 1989 or otherwise. The return orders would be set aside. Judgment, 08/10/2021, free
  • The father appealed against the dismissal of his application under the 1980 Hague Convention for the summary return of his eight-year-old daughter to Poland. The judge had determined that there was a grave risk that returning her to Poland would expose her to physical or psychological harm. The father argued that the judge had failed to apply the correct legal principles; wrongly made or purported to make findings of fact; wrongly determined that the Polish authorities would not be able to protect the child following a return to Poland; and made a flawed decision in respect of her objections to a return. Moylan LJ found that there had been no analysis in the judgment of the child's circumstances were she to return to Poland nor of why or whether those circumstances would potentially expose her to a grave risk of harm, as required by Article 13(b). The sole focus in that section of the judgment had been on the allegations about past events. He concluded that the appeal had to be allowed. It would have been preferable, he said, if the court had been able to determine the application, but it was not in a position to undertake the broad analysis required, in particular in respect of how the discretion to make a return order should be exercised in the light of the judge's conclusion that the child objected to returning. Newey LJ and Sir Andrew McFarlane, President of the Family Division, agreed. The appeal was allowed and the matter was remitted to be reheard, as soon as could be arranged. Judgment, 18/09/2021, free

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