Family Law Hub

A (Hague Convention: Wrongful Retention) [2021] EWHC 1204 (Fam)

The father applied for his six-year-old daughter's summary return from England to Russia under the 1980 Hague Convention, alleging that the mother had wrongly removed or retained her. The mother defended the application, arguing that the father had consented to the daughter's removal from Moldova to England, and that the child had become habitually resident in England and Wales. The court had to determine the date of wrongful removal or wrongful retention, habitual residence, settlement, the Article 13(b) defence of grave risk of harm, and, if relevant, the exercising of the court's discretion whether or not to order return. Also whether, when parties had agreed to the retention of a child abroad for an identifiable period of time, and the left behind parent resiled from the agreement and demanded the return of the child before the expiry of that period, the refusal or failure of the travelling parent to comply with the demand rendered the child's retention wrongful at that time. Poole J found that parts of the father's evidence had been inconsistent, sinister, incoherent, difficult to accept and deliberately misleading. The removal of the daughter from Russia had indeed been in breach of the father's custody rights, but Poole J rejected without hesitation his evidence that there had been an agreement to return her there. There was no wrongful removal when the daughter was brought to England in 2018, and no wrongful retention until January 2019, by which point she was habitually resident in England. Had it arisen, Poole J would have exercised his discretion to refuse to return the child to Russia, and he would have found that the Article 13(b) defence of grave risk of harm or intolerability was established, one reason being that the mother was not a Russian citizen and would have little to no security or stability there upon return. He dismissed the father's application for summary return.


Published: 14/05/2021

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