Family Law Hub

Z v D (Art 13 Refusal of Return Order) [2020] EWHC 1857 (Fam)

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.


Published: 21/07/2020

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