Family Law Hub

S v D (Hague Convention: Domestic Abuse: Undertakings: Return to Third State) [2019] EWHC 56 (Fam)

In a tweet: Successful application by a father (“F”) for return of the child to a state other than the one in which the family had been habitually resident when the wrongful removal occurred.

  • In a tweet: Successful application by a father (“F”) for return of the child to a state other than the one in which the family had been habitually resident when the wrongful removal occurred.

    Summary: Here, an interesting case in which F sought the return of the parties’ son (“A”) from England to Hungary. The family had been living in Germany when the mother (“M”) removed A to England. F followed M to England, and in response to M telling him the relationship had ended, made an attempt on his own life. While in hospital, he was visited by M and A, and during the visit F seriously assaulted M on the hospital ward by attempting to strangle her, witnessed by A. F was charged with assault. In the ensuing Hague Convention proceedings (“the Convention”), two key issues before the judge were:

    • whether the Convention permits return to a state that was not the child’s habitual residence when the wrongful removal occurred (described by the judge as an “unusual” scenario); and
    • the presence of domestic violence and whether this, together with the M’s related concerns, were substantial enough to satisfy a defence under Article 13(b).

    Held: A correct interpretation of the Convention permits an order to return a child to a state other than the one in which the child was habitually resident when wrongfully removed. In this instance, both parents were Hungarian nationals and had lived together in Hungary for several years before moving to Germany with A. Both F and M had family members in Hungary, and M’s father was acknowledged to live in the same town as F, whom the judge acknowledged would be able to offer M support.

    Despite a serious assault, the judge rehearsed the purpose of the Convention and considered whether protective measures and arrangements could be put in place to ameliorate or obviate the matters relied on in support of the Article 13b defence. The judge was satisfied that F had complied with the terms of the Restraining Order imposed following his conviction for assault, without breach, and at that point for a period of approximately 9 months. He was offering a suite of undertakings to the court that provided M with the financial means to return, protection from harm and an assurance that he would engage fully in the Hungarian proceedings. This was consistent with the approach adopted by the CA in Re C (Article 13(b)) [2018] EWCA Civ 2843 and with the Practice Direction on Case Management and Mediation in International Child Abduction Proceedings issued on 13 March 2018, in which there is an emphasis on offering protective undertakings at the earliest possible opportunity.

    Comment: A helpful case if considering domestic violence in the context of the Convention and under Article 11 BIIR. A clear reminder that the court will honour the spirit and purpose of the Convention: that provided a child’s safety can be met by the country to which the child will be returned, wrongful removal/retention will not be tolerated.

    Read the full text of the judgment on Bailii

Published: 08/07/2019

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