- 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 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
- A final child arrangements order had been made, and the child was to live with his mother. The father breached the order, abducting the child for seven days. He told the court that he had been planning the abduction ever since the order was made. He had borrowed a car and a flat from a friend in preparation. Arbuthnot J found the level of culpability to be high, and the level of harm to be medium. The child had found the abduction traumatic. Finding him had required much press involvement, and it was difficult to anticipate what the effect of those stories would be on the child's development. There were several aggravating factors. Arbuthnot J committed the father to prison for four months, to be released after two months, subject to recall and probation. Judgment, 13/10/2021, 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
- 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
- An application was brought for return orders from Saudi Arabia under the inherent jurisdiction of the High Court. The central factual issue was the question of abandonment, and the alleged stranding of the mother and the children in Saudi Arabia. The mother's case was that she wished to return to the United Kingdom but was unable to, and that the father had engineered this situation. The father said that the mother had settled in Saudi Arabia. She also made allegations of domestic abuse, which HHJ Mark Rogers found to be credible. He also found that the husband's departure from Saudi Arabia, taking the family's passports, was a response to the family breakdown and his desire to isolate his wife and weaken her position. She was stranded in Saudi Arabia, against her will, in circumstances brought about in part, if not in whole, by the father. The children were not in full-time education, and had no access to proper healthcare, and the judge came to the conclusion that they were not habitually resident in Saudi Arabia. The children were British and he was satisfied they required the court's protection and that subsequent matters should be dealt with here. Orders would be required to secure the return of the children to the United Kingdom. Judgment, 22/09/2021, free
- The 15-year-old daughter applied for the release of her own Russian and Greek passports, currently held by the mother's solicitors pursuant to a previous order, so that she could travel for about three weeks with her maternal grandmother to Barnaul in Russia. The father opposed the application. In Holman J's view, the risk of non-return was a low one. The daughter was old enough and mature enough to understand the gravity of a solemn promise given to a judge and to her father, and the gravity of breaking it. Formal undertakings would be given by both the mother and the grandmother which would carry sanctions if broken. The mother's passport would be lodged, together with that of the daughter's sibling, so that if the daughter did not return from Russia, there would be no question of the mother and sibling travelling there to join her. The risk was far outweighed by the benefits to her of the proposed trip and her own strong wish to travel there. The trip would therefore be permitted and the daughter's passports released. Judgment, 20/09/2021, 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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