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Summary Return

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  • An application by the father for the summary return of his son to Italy, pursuant to the Hague Convention 1980 and, to the extent that it remained part of UK domestic law, Brussels IIa. The parents were Italian nationals who were born, married and lived in South Africa. Following a move to Italy, the couple separated and in October 2019 the mother brought the child to England, where he now lived with her at an undisclosed location. The father had reported the abduction to the Italian police. Mr David Lock QC, sitting as a deputy High Court judge, came to the conclusion that there was a strong possibility that the Mother had set out in a deliberate and calculated way to mislead the court, as to the father's consent to her bringing the child to England, and as to her ability to speak Italian. He declined to exercise the discretion to suspend the return order, thinking it better for the mother to engage with the Italian authorities investigating the abduction sooner rather than later. He made an order to require the return of the child forthwith to Italy. Judgment, 04/03/2021, free
  • 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. Judgment, 20/12/2020, free
  • An application for the summary return of the eight-year-old son to Australia, where he had always lived until being brought without warning to England by the mother. The application was made under the Child Abduction and Custody Act 1985, pursuant to Articles 3 and 12 of the 1980 Hague Convention. It was agreed that the son's habitual residence in Australia and the father's exercising of rights of custody at the material time had both been made out. The task for Mr Teertha Gupta QC, sitting as a deputy High Court judge, was thus to decide on a summary basis whether the mother had raised a valid defence under the 1980 Hague Convention and, if so, whether he should exercise his discretion not to return the child forthwith to Australia. He found that the Article 13(b) defence had not been established; there was no evidence to support the mother's assertion that the child had suffered severe symptoms of intolerable anxiety. Mr Teertha Gupta QC expressed concern that the mother's actions might be symptoms of a deeper wish to eradicate the father from the child's life. It was in the child's overall and long-term best interests to return to Australia forthwith. The father's application was granted. Judgment, 18/12/2020, free
  • The three-year-old daughter was a British citizen who had lived with the maternal grandmother in India since 2018, after the mother returned to England without her. The father had applied for summary return under the inherent jurisdiction of the High Court. The mother had applied for a specific issue order for "permission to change jurisdiction of the child", which Mostyn J took to be an application for a declaration that the child was habitually resident in India. A preliminary issue arose regarding whether the court had jurisdiction in the case. Mostyn J found as a fact that the daughter was now habitually resident in India and thus there was no jurisdiction in this case under Brussels II article 8. He also found as a fact that at no time up to 26 August 2020 had the mother unequivocally accepted that the English court had jurisdiction to deal with parental responsibility issues concerning her daughter. In his judgment, it would be wholly unprincipled, and a wrong exercise of the court's powers, for him to make orders on the father's application pursuant to the High Court's inherent powers in circumstances where the father had not established jurisdiction under either Brussels II or sections 1–3 of the Family Law Act 1986. His judgment was that the jurisdiction of the court depended on the territorial reach of Brussels II article 10. A question was referred to the Court of Justice for an urgent preliminary ruling: "Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?" Pending receipt of the answer to the question the proceedings would be stayed. Judgment, 09/11/2020, free
  • The eleven-year-old son was born in Italy and was an Italian national, as was the mother. The father had brought the son to England; the mother sought his summary return. The father asked the court to exercise its discretion to refuse to so order on the basis of the exceptions under Article 13(a) (asserting that the mother had not been exercising her rights of custody at the relevant time) and Article 13(2) (asserting that the son objected to returning to Italy and had attained an age and degree of maturity at which it was appropriate to take account of his views). Mr Richard Harrison QC, sitting as a deputy High Court judge, thought it was clear that the mother had actually been exercising her rights of custody. He also found that while the son had attained the requisite age and degree of maturity and genuinely objected to returning, those objections were the product of significant influence on the part of the father, who had previously recruited the child as a co-conspirator in the wrongful removal. The child's views would not be decisive of the outcome. Welfare considerations led him instead to order the child's return to Italy, albeit not until the half-term holidays. Judgment, 26/10/2020, free

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