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  • Both parents were British citizens with Overseas Citizens of India status, and both had been living in India. One day before the first court hearing in child welfare proceedings brought by the father, the mother had flown their five-year-old son to England. The father now applied under the court's inherent jurisdiction for the summary return of their son to India, and asserted that this was a "hot pursuit" case. The application was opposed by the mother, who alleged domestic abuse and coercive behaviour. Cobb J reached the clear conclusion that it was in the boy's best interests to be returned to India forthwith, and for his future to be determined in the courts there. He was habitually resident in India, while his situation in England was at best transitory and fragile; for example, he was not attending school here. In Cobb J's judgement, the mother's clandestine and unilateral action in bringing the boy to England had been primarily prompted by her wish to avoid engaging in family court proceedings in India. The allegations of domestic abuse had been laid before the Indian court in the child welfare proceedings there. In his view, the risk of harm to the mother from the alleged abuse could be appropriately mitigated by the protective measures offered by the father, the fact that she could return to live with her parents, and the availability in India of civil law process (the equivalent of non-molestation proceedings). He was satisfied that the Indian court was appropriately seised of child welfare proceedings regarding the child. Judgment, 31/08/2021, free
  • The mother appealed against an order dismissing her applications under the inherent jurisdiction in respect of her children who were residing with their father in Libya. She submitted that the judge had wrongly interpreted and applied the rules in relation to the setting aside of an order under the inherent jurisdiction and in particular had failed to consider whether the children's welfare required the non-return order to be set aside. She also submitted that the judge had given undue weight to the likelihood that an order would not be directly and reciprocally enforced in Libya. For the father it was submitted that the judge had correctly identified the applicable law and made correct findings, and that the judge's characterisation of the mother's litigation conduct as Henderson abuse was a good example of judicial vigilance against repeat applications. In Baker LJ's judgment, to import Henderson abuse into children's proceedings was neither necessary nor appropriate: for example, where a child's welfare was in issue, a second application to the court would rarely be capable of being simply dismissed as a collateral attack on the first decision. He also disagreed as to the relevance of whether the order would be enforceable in Libya: the court was required to assess the welfare of the children, not the enforceability of its order. He also disagreed with the judge's two primary reasons for dismissing the mother's application. He concluded that the judge's approach to the set aside application had been flawed and that the mother's appeal against his decision to dismiss the application had to be allowed. Stuart-Smith LJ and Moylan LJ agreed. Judgment, 24/08/2021, free
  • The father sought the summary return of his two sons, aged 6 and 4, to the Republic of Zambia, invoking the court's inherent jurisdiction. The children had lived with their mother in England since August 2020. The mother resisted the application, submitting that the children had acquired a new habitual residence in this jurisdiction, and that the court thus had jurisdiction to conduct a full welfare enquiry under the Children Act 1986. Roberts J decided that the children were habitually resident in England, and had been at the time of the father's application. It was of particular significance that the home in which they now lived had been specifically purchased as a family home, with the specific consent of the father, before his change of heart about moving. There was no reasonable basis on which to conclude that a return to Zambia was in the children's best interests, given, for example, the father's precarious financial position, and the mother's previous unhappiness there. The cumulative effect of a return in the circumstances was likely to be wholly inimical to the interests of the children, who were now settled in their homes and schools in this jurisdiction. Roberts J thus refused the father's application for summary return. Judgment, 23/08/2021, free
  • The father applied for the child's summary return to Australia. The mother, who was deaf and had a cochlear implant due for replacement, relied on a defence under Article 13(b) of the 1980 Hague Convention. Submissions on her behalf focused on the father's criminal convictions, for which he had been placed on the sex offenders register. Hayden J noted that it was an established precept of child safeguarding that where, as here, a convicted offender failed to acknowledge guilt and/or sought to minimise his behaviour, such actions were to be generally regarded as indicative of continuing risk. The mother made allegations of coercive and controlling behaviour against him, but appeared to have a very poor grasp of the risk that he could present to her children. Hayden J was comfortably satisfied that the evidence established a grave risk of serious harm to a child. In Australia, her isolation, vulnerability, challenges with communication and incomplete understanding of the risk the father represented would all leave her exposed to the manipulative and abusive behaviour of which he was accused. The defence provided by Article 13(b) was established and the application was dismissed. Judgment, 26/05/2021, free
  • 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. Judgment, 14/05/2021, free

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