Family Law Hub

Child Abduction

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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 against the judge's refusal to set aside a return order under the 1980 Hague Convention. The mother lived in England and had dual British/Bosnian nationality. The father was a Bosnian national and had always lived in Bosnia. She had returned with the child to England in circumstances which had involved a restraining order being made against the father by the Municipal Court in Sarajevo. The judge had found that the son was habitually resident in Bosnia immediately before his removal, that there had been no consent or acquiescence to his removal, and that the Article 13(b) threshold of grave risk of harm or intolerability had not been crossed. This appeal regarded the latter finding. Moylan LJ found that the Article 13(b) risk was clearly established. The judge had been wrong to discount the effect of the father's breaches of his previous undertakings, and the judge's approach to the mother's mental health had been flawed in a number of respects. It was clear that there would be a grave risk of the son being placed in an intolerable situation if they were to return to Bosnia and be separated. Peter Jackson LJ and Carr LJ agreed. The appeal was allowed and the father's Hague Convention application was dismissed. Judgment, 11/08/2020, free
  • The mother applied under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention 1980), and in the alternative under the inherent jurisdiction, for the return of her eight-year-old son to Russia. She contended that the father had wrongfully removed or retained the child in 2019. The father opposed the applications, raising issues of whether, at the relevant time, the child had been habitually resident in Russia and the mother had had rights of custody, whether the child would be at risk following a return, and whether the child objected to a return. The father's own prior applications, including for prohibited steps orders, had been stayed pending determination of the mother's applications. Cobb J found that the son had developed a sufficient degree of integration in life in Russia, while living there for ten months or so, to acquire habitual residence. The removal had indeed been in breach of the mother’s rights of custody. He did not believe that the son would be likely to suffer the “severe degree of psychological harm which the 1980 Hague Convention has in mind” (per Lord Donaldson) and the father therefore failed in his case under Article 13(b). Cobb J did not regard the son's objection to returning as being powerfully expressed or adamant. He reached the conclusion that a return to Russia was in the son's interests, where fully-informed welfare-based decisions could be made in a court to which both parents had ready access. Judgment, 27/07/2020, free
  • Both parents and the daughter were Brazilian nationals. The mother applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention. The child had been habitually resident in Brazil and had been wrongfully retained in England following a holiday. The father resisted the application on Article 13(b) grounds, and on the ground that the child objected to returning for the purposes of Article 13. The maternal grandparents and a maternal aunt had alleged violent conduct towards the child on the part of the mother, and this had been confirmed by the child in conversation with the the Cafcass Officer. MacDonald J was satisfied that there was a grave risk that returning the daughter to Brazil would expose her to harm or an intolerable situation for the purposes of Article 13(b). It was clear that the daughter had settled well in England and was having her physical and emotional needs met here. He declined to make a summary return order and dismissed the mother's application. He emphasised that his decision was reached upon the very unusual facts of this case, i.e. that the holiday had provided the opportunity for the child to alert her other parent and the authorities to the risks she faced in Brazil. This was not a paradigm case of wrongful retention following a holiday. Judgment, 21/07/2020, free

Latest know-how

  • In a tweet: Successful application made under the Hague Child Abduction Convention despite a delay where mother (“M”) had been unaware of the Convention prior to her application. Case note, 08/07/2019, members only
  • Fresh guidance issued by The President, 13 March 2018, covering procedure, case management and mediation in international child abduction cases Practice note, 13/03/2018, free
  • Mr Justice Mostyn on whether he has the power to revoke a return order in proceedings under the Child Abduction & Custody Act. Case note, 08/07/2014, members only
  • Judgment by the President in child abduction case raising 2 points of general importance: 1) what powers the court has to compel third parties to secure return of an abducted child where they do not have parental responsibility or control over the child and; 2) the role, powers and proper basis for making orders concerning non-subject children in such proceedings Case note, 08/07/2014, members only
  • Judgment concerning return of a child to the US where the mother had successfully obtained a ruling in Texas that the child had been wrongfully retained in the US, the father had complied with that order and then had appeals turned down by the High Court and Court of Appeal. Father's appeal allowed. Case note, 18/02/2014, free

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