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Wrongful Removal

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  • The American father, living in the USA, had applied for an order for his four-year-old son's immediate return there under the 1980 Hague Convention. The son had dual nationality and lived with his mother, a British national, in England. The son had been born in England. A marital settlement agreement had been agreed to the effect that the mother and child would relocate to the UK, with the child spending his school breaks with his father in the US, a minimum of three visits. The pandemic and quarantine restrictions had prevented this from happening as planned, and the father had filed a petition with the Circuit Court of his state for contempt and to modify custody. Mostyn J noted that "it is elementary that the 1980 Hague Convention can only be invoked where the child's habitual residence has not changed to the new state prior to the alleged act of removal or retention". The question of habitual residence was one of pure fact. In this case, there was no possible basis for saying that the removal was not lawful, and Mostyn J was completely satisfied that the mother had not harboured a dishonest intention to later deprive the father of his spending time rights. There had been no wrongful removal, nor any wrongful retention, and the Convention was not engaged because the son had plainly acquired habitual residence in England by the time in question. The father's application was dismissed. Judgment, 02/05/2021, free
  • The father had sought an order for the American mother to return their 16-year-old daughter from the USA. A residence order had been made in his favour and he had been her primary carer for many years. The mother had arranged a plane ticket and American passport for the daughter without telling him. He had found out when the girl phoned him from the plane. The Hague Convention did not apply because of her age, so an application for wardship and return orders had been made under the inherent jurisdiction. Although the parties subsequently reached agreement, and now presented a consent order, Peel J considered it appropriate in this case to deliver a judgment, partly because jurisdictional issues arose and partly because he was of the clear view that it would assist the parties and their daughter to achieve a degree of closure. He concluded that the child had not acquired habitual residence in the USA at the relevant time, and he sympathised with the father's profound concern about the way in which the daughter had left the UK. However, the wishes of a nearly 17-year-old were likely to be determinative, absent powerful or compelling welfare interest to the contrary, and the daughter had quite simply decided that her future was in the USA. A return order would be an exercise in futility. Peel J granted the consent order sought. Judgment, 29/03/2021, free
  • The Irish father sought the return of two five-year-old children to the Republic of Ireland under the Hague Convention. The mother, a British national currently living in England after a clandestine departure, opposed the application, while applying under the Children Act for leave to remove to Ireland in respect of her third child, in case a return order was made in respect of the other children. The father of the third child applied for a residence order and a prohibited steps order. Peel J made a return order for the first and second children upon their father undertaking, among other things, to pay weekly child maintenance and to not support any prosecution of the mother. Peel J also decided that the mother should be given permission to relocate with the third child to Ireland. Among other factors, the father of the third child had shown himself capable of violence to the mother and her children, and so the court could not be confident about entrusting the care of the third child to him. Judgment, 22/03/2021, free
  • A fact-finding hearing to determine whether the courts of England and Wales had jurisdiction to determine welfare issues in relation to three children. The applicant was the mother of the three children, the respondent the father. Their precise history was disputed, but both parents had come to England as asylum seekers. The mother claimed to be from Yemen and the father claimed to be from Somalia, and they had three children. One was born in Sheffield, one in Yemen, and, after the family left the UK in 2008, the third was born in either Yemen or Saudi Arabia. Ms Sarah Morgan QC, sitting as a deputy High Court judge, came to the view that some of the evidence placed before her had been misleading and intended to mislead. The case had unusually difficult features, caused by the passage of time, and there was no agreement between the parties even as to that which she was being invited to consider and determine. She found that the family had left (and the mother had consented to the children's departure from) England and Wales in 2008 for the purposes of a holiday and not as a permanent relocation. Immediately before leaving, the family had been habitually resident in England and Wales. Neither before nor once they had left had the mother indicated consent to a relocation. Thus there had been a wrongful removal in that the mother had consented to a holiday but not to a relocation, and/or there had been a wrongful retention when the father failed to arrange their return to England and Wales at the conclusion of the holiday. She found that the court had jurisdiction in respect of the two older children, and although the third child had never lived in or even visited the United Kingdom, jurisdiction in respect of her existed by reason of the doctrine of Parens Patriae. The matter was listed for consequential directions in consultation with Williams J. Judgment, 20/03/2021, free
  • The father applied for the summary return of his children (aged 3 and 1) to Australia, pursuant to the 1980 Hague Convention. The father was a professional sportsman, born in Australia. The mother was born in England. Both children were born in Australia and had dual British and Australian citizenship. The mother brought them to England in February 2020, with the father's agreement, but did not return. The primary defence of the mother was that there was no relevant wrongful act of retention, because the original due date of return was frustrated by the Covid-19 pandemic, and no alternative due date ever substituted. Mostyn J described this as a novel argument, but "with some hesitation" decided that it should succeed. A wrongful act of retention, whether before or after the due date for return, required there to be a clearly agreed due date of return. By August 2020, when the father made it clear to the mother that he wanted the children to return to Australia, the children were habitually resident in England, and thus the Hague Convention could not be invoked. Even if there had been an operative retention by the mother, the husband's messages were all consistent with his acquiescing with her decision, and thus Mostyn J would have declined to order the return of the children to Australia. The father's application was dismissed. Judgment, 06/03/2021, free

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