Family Law Hub

Summary Return

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  • The mother applied for costs, arguing that the father had acted unreasonably in only conceding the application for summary return at lunchtime on the first day of a three-day hearing. The father's representative pointed out that in a matter such as this, costs did not automatically follow the event and the court had a broad discretion. In Lieven J's view, if either party had been prepared to act more reasonably and take a more consensual approach, costs and court time could have been saved, but it would not be appropriate to depart from the general approach that in family proceedings involving children no order for costs is generally made. Judgment, 29/07/2020, free
  • The father applied under the inherent jurisdiction of the High Court for an order for the summary return of four children, aged 1, 9, 13 and 14, to the jurisdiction of Pakistan. The mother opposed the application. Both parents and all four children were Pakistani nationals, but the three oldest children had UK passports. The mother alleged domestic abuse, as did the three oldest children. The father alleged a scheme to marry the children off for immigration purposes. MacDonald J found that the father had at times been an arrogant witness, pre-occupied with the impact of the case on his reputation, and dishonest in his evidence. He found that the mother had also been "economical with the truth". The children had been habitually resident in Pakistan at the time of their removal, but a welfare case against their summary return was made out. Returning them, against their wishes, would not be in their best interests. The father's application was dismissed, and a stay on the mother's Children Act 1989 proceedings was lifted. Judgment, 24/07/2020, free
  • 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. Judgment, 21/07/2020, free
  • The final hearing of the mother's application for her daughter's summary return to Poland pursuant to the 1980 Hague Convention or, alternatively, the inherent jurisdiction. In 2012, the mother had wrongfully removed the child from England, but the Polish court had found a defence under Article 13(b) to be made out. In 2015, the father had wrongfully removed the daughter from Poland, where she was at that time habitually resident, using a covertly acquired Algerian passport for her. The mother's 1980 Hague Convention application in England had led to a collection order in 2020, but she had needed to return to Poland and the child had returned to the father's care. The mother conceded during this hearing that, given her daughter's objections to a return to Poland, her applications could not succeed. The daughter urgently required finality as to where she would be living and with whom, said Gwynneth Knowles J, and that would be achieved by permitting the mother to withdraw her application. However, both parents needed to hear what their daughter was saying about contact and adapt themselves accordingly. Judgment, 12/07/2020, free
  • The mother applied for the summary return of three children from Wales, where they lived with the father, to the Republic of Ireland. A fourth child lived with the mother. During a period of homelessness, the mother had asked the father to care for the four children on a temporary basis in his home in Wales. Upon her finding accommodation, the father had declined to return them, and she had collected the youngest from his school and taken him back to Ireland. The court had to determine: the nature of the agreement between the parents; whether the father had wrongfully retained the children; whether the children had been habitually resident in the Republic of Ireland; whether an article 13 exception had been established; and, if it had, whether the court should exercise its discretion not to order the children's return. Nigel Poole QC, sitting as a deputy High Court judge, concluded that the evidence did not establish that the mother had secured suitable accommodation by the given time. He was not satisfied that the father was guilty of wrongful retention of the children at any point prior to the application being made, and so the Convention and Regulations could not assist the mother in her application for summary return. The children's time in Ireland had been chaotic and peripatetic; they remained habitually resident in the United Kingdom throughout. The defence under Article 13(b) was made out: they should not be expected to tolerate returning to Ireland without the reassurance of stability and security. Had he found that there had been a wrongful retention, he would have had no hesitation in exercising his discretion so as to refuse return. The mother's application for summary return was dismissed. Judgment, 24/06/2020, free

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