Family Law Hub

D v E [2020] EWHC 3257 (Fam)

The father applied, under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return to Australia of three children aged 4, 9 and 13. The mother opposed the application on the basis that the retention had not been in breach of the father's rights of custody, that the father had acquiesced to the relocation, that there was a grave risk of a return exposing the children to harm, and that two of the children objected to returning and were old enough for their views to be taken into account. By the time of the hearing it was common ground between the parties that the children had been habitually resident in Australia, that the father shared rights of custody with the mother and that he had been exercising these rights. Mr David Rees QC, sitting as a deputy judge of the High Court, did not accept the mother's evidence that the father had given express consent to a permanent relocation. He found that the mother had made out an Article 13 exception in relation to the two older children's objections, but not with regards to grave harm. He exercised his discretion to direct the return of the children to Australia, but noted in a postscript that his order had not been carried into effect, the Australian courts having permitted, on an interim basis, the children to remain in England with the mother.


Published: 20/12/2020

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