Family Law Hub

Children

Latest updates

  • 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
  • The son had travelled to the United Kingdom with the mother for a three-month stay, with the father's consent. When they did not return the father made an application under the Hague Convention 1980. The mother relied upon the defence under Article 13(b), alleging domestic violence and drug use. It was agreed that the mother had retained the son here at a time when he was habitually resident in Australia and that this retention breached the father's custody rights. Theis J did not doubt that if the mother returned to the Australia with the child she would suffer emotional distress and mental anguish, but her pre-existing depressive and anxious tendencies would be a reality of her life wherever she was and could not be solely or mainly linked to a return to Australia. The issues raised did not, in Theis J's judgment, meet the threshold in Article 13(b). She was satisfied that the protective measures agreed would be able to mitigate any harm. She would order that the son should return to Australia, on a date to be fixed once current travel restrictions were lifted. Judgment, 21/06/2020, free
  • An application under the Child Abduction and Custody Act 1985 and the Hague Convention 1980 for the eight-year-old daughter to be returned to Spain. The mother had brought the child to the United Kingdom without warning, and had refused to disclose their location. She asserted that there had been a history of domestic abuse. It was common ground that the removal was in breach of the father's rights of custody, and that the removal was from the child's country of habitual residence. The mother raised four defences: settlement under Article 12; grave risk of harm under Article 13(b); the child’s objections to return under Article 13; and breach of the daughter's human rights under Article 20. Mr Robert Peel QC was not convinced that the evidence demonstrated the physical stability, integration and permanence needed to establish the defence of settlement. The mother fell far short of establishing that there was a risk of harm to the child. The defence regarding the child's objections was abandoned by the end of the hearing, but would have also failed, as did the defence under Article 20. An order for the daughter's return would be made. Judgment, 19/06/2020, free
  • The mother's application for an extension of time to appeal, and for permission to appeal, against a child arrangements order. The mother said that the delay had been due to the shock caused by the order, and by her being physically unwell. The five grounds of appeal included that the judge had placed undue weight of the views of the child, and insufficient weight on factors such as the need for balance in the child's life, the views of the former caseworker, the risk of harm, and the fairness of the hearing. Williams J found that the explanation given by the mother for the delay was unsatisfactory. In his view, the judge's conclusion that the daughter's views were her own and should be given significant weight appeared to be unassailable. The criticism regarding the daughter's alleged need for greater balance was not supported. The Recorder was justified in departing from the caseworker's recommendations. The history of the case did not suggest an obvious risk of the child becoming estranged from the mother. Williams J was unable to discern anything which impinged upon the fairness of the process. He refused to grant an extension of time to appeal, and he refused to grant permission to appeal. Judgment, 16/06/2020, free
  • The father applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention, in respect of two children, aged seven and four. The children were born in Belgium and had always lived there until being taken by both parents to Spain for six weeks, and then to England by the mother, in the company of a new acquaintance with multiple convictions. The move to Spain, it was suggested, had been to prevent the Belgian social care authorities from undertaking safeguarding interventions. However, the Belgian authorities informed the court that they would not be taking any active steps towards the return of the children to Belgium, and that in their view the children should be with the mother. The local authority had completed a parenting assessment of the mother which concluded that she was unable to care safely for the children. The father had been accused of domestic abuse, and though in England at the time had failed to attend assessment sessions due to drug use. The children were now in foster care, and in regular contact with the mother. MacDonald J found that the exception under Article 13(b) of the 1980 Convention was made out. There was no evidence before the court to confirm who would take custody of the children upon arrival in Belgium, what arrangements would be made for their care, or how contact with their mother would be facilitated. Ordering their return to Belgium would place them in an intolerable situation for the purposes of Article 13(b). The father's application was dismissed. Judgment, 14/06/2020, free

Latest know-how

Latest training

Latest sources

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item