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Hague Convention 1980

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  • 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
  • The four-year-old son had come from Australia with the mother to visit her family in the United Kingdom, with the father's consent. They did not return, and so the father made a Hague Convention application. The parties agreed that the son had been habitually resident in Australia at the relevant time. The mother relied on the defence under Article 13(b). While Theis J did not doubt that if the mother returned with the son she was likely to suffer in the way described by the doctor consulted, given the chronic nature of her psychological difficulties, that did not, in her judgment, in the circumstances of this case, meet the threshold in Article 13(b). Theis J was satisfied that the protective measures agreed by the parties would be able to mitigate any harm. She ordered that the child be returned to Australia, on a date to be fixed. Judgment, 26/10/2020, free
  • A third set of child abduction proceedings brought by the father pursuant to the 1980 Hague Convention in respect of the same two children, a boy aged 9 and a girl aged 6. The children had been born in England, and the family had moved to Morocco in 2016. The mother had brought the children back to England while the father served a prison sentence for adultery, a criminal offence in Morocco. The return of the children to Morocco had twice previously been ordered, but each time the mother had brought them back to England. Francis J found that the children had been habitually resident in Morocco at the time of the most recent removal to England. He found that the views of the children had been "poisoned", and thus would not make any difference to his decision, which was for the children to be returned to Morocco. The mother was ordered to pay the father's costs on the indemnity basis. The judgment was not anonymised, in the hope that publicity would prevent a fourth abduction. Judgment, 28/09/2020, free
  • An application by the father for the summary return of his two twin children to Croatia, pursuant to the provisions of the 1980 Hague Convention and Brussels IIa. The children were in England with their mother, living with her parents. The father had previously retained the children in Croatia without her consent, leading to the end of the couple's relationship, but the children had been found by the Croatian court to be habitually resident there. She accepted that the children had then been brought to England without the father's consent, but with reference to Article 13(b) claimed that the children were likely to suffer distress if required to return to Croatia without her. In the view of Mr David Lock QC, sitting as a deputy High Court judge, the evidence did not suggest that there was a grave risk of psychological distress sufficiently serious for Article 13(b) to apply. He made an order requiring the return of the children forthwith to Croatia. Judgment, 25/09/2020, free
  • The mother had brought the daughter to England without the father's knowledge. She alleged that he had racially and sexually abused her during their marriage; they had separated in 2014 and she had subsequently come out to friends as a lesbian. On arrival in the UK, she had applied for asylum on the basis of the fear of persecution from her family as a result of her sexual orientation, from which the South African authorities had been unwilling or unable to protect her. The father's application under the 1980 Hague Convention for his daughter to be returned to South Africa had been stayed, pending the determination of the mother's asylum claim. This was an appeal against that stay, on four grounds, including that the judge had erred in considering any form of refugee status to be an absolute bar to a return under the 1980 Hague Convention. The Court of Appeal (Hickinbottom, Moylan and Peter Jackson LJJ) noted that the case raised issues regarding the apparent tension between the objective of the Hague Convention 1980, to return a wrongfully removed or retained child expeditiously to their home jurisdiction, and the principle of the 1951 Geneva Convention, that refugees should not be returned to a country where they might be persecuted, as well as issues as to the rights of children in such situations. In their view, children with refugee status could not be returned under the 1980 Hague Convention to the country from which they had been given refuge. However, there was no bar where, as transpired to be the situation in this case, the child had been named as a dependant in an application for asylum by a parent, but had made no independent asylum claim. Even where a child had been granted or had applied for refugee status, the High Court was not prevented from determining an application or making a return order, though implementation might need to be stayed. The appeal was allowed. Judgment, 25/09/2020, free

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