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Hague Convention 1980

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  • The father applied for the summary return of his children (aged 3 and 1) to Australia, pursuant to the 1980 Hague Convention. The father was a professional sportsman, born in Australia. The mother was born in England. Both children were born in Australia and had dual British and Australian citizenship. The mother brought them to England in February 2020, with the father's agreement, but did not return. The primary defence of the mother was that there was no relevant wrongful act of retention, because the original due date of return was frustrated by the Covid-19 pandemic, and no alternative due date ever substituted. Mostyn J described this as a novel argument, but "with some hesitation" decided that it should succeed. A wrongful act of retention, whether before or after the due date for return, required there to be a clearly agreed due date of return. By August 2020, when the father made it clear to the mother that he wanted the children to return to Australia, the children were habitually resident in England, and thus the Hague Convention could not be invoked. Even if there had been an operative retention by the mother, the husband's messages were all consistent with his acquiescing with her decision, and thus Mostyn J would have declined to order the return of the children to Australia. The father's application was dismissed. Judgment, 06/03/2021, free
  • The father appealed against a decision to set aside a return order and to dismiss his application for summary return. The father was an Italian national, the mother a British national, and shortly after their son was born in England they moved to Italy. In 2019, when the child was 10, the mother brought him to England and they did not return. The judge had found that the evidence of the child's wishes and feelings amounted to "a fundamental change of circumstances" and "a fundamental change to the basis on which the previous order was made". In Hayden J's view, although the judge had clearly identified a significant and sustained degree of pressure placed on the child by his mother, he did not seem to have considered how this would have compromised the authenticity of the child's expressed views. The test as to whether there had been a 'fundamental change of circumstances' had to be set high. The mother's application was a clear example of an attempt to reargue a case which had already been comprehensively determined. Asplin and Moylan LJJ agreed. The appeal would be allowed and an order made for the child's return to Italy. The child would not be added as a party to proceedings; to do so would only serve to heighten the conflict that he had struggled to avoid. Judgment, 04/03/2021, free
  • 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 mother contended that her three children, aged 14, 10 and 8, had been wrongfully retained in England. She applied, pursuant to the Hague Convention 1980, for their summary return to Poland and, pursuant to Brussels IIa, for the recognition and enforcement of an order made by the Polish District Court. The father opposed the return. The parents were Polish nationals, and the children had been born in the USA, before moving to Poland. The parents had separated after the father moved to England. During a holiday in England the children had complained of poor treatment by the mother, and the father had not returned them. Mr A. Verdan QC (sitting as a deputy High Court judge) found that the children's habitual residence had remained in Poland, but that the exception under Article 13(b) had been made out, the children being at risk of physical ill-treatment and unacceptable chastisement by the mother. He would not exercise his discretion to return the children to Poland pursuant to the Hague application. Considering the second application, he noted that he had not been made aware of any authority suggesting that the court, having refused a return via the Hague Convention, should at the same hearing enforce a return via Brussels IIa, and he declined to do so. He encouraged the parties to engage in mediation. Judgment, 03/03/2021, free
  • The mother had unilaterally taken the children from Rome in July 2020. The children had not seen their father since. One child was born in England, the other in Italy after the family moved there in 2011. If not for the abduction, the children would have been interviewed by Italian social services in October 2020, ahead of the father's appeal regarding child arrangements being heard in November 2020. The Appeal Court of Rome granted custody to the father, describing the abduction of the children as "seriously harmful to their balanced emotional and physical development". The father had also commenced proceedings here under the 1980 Hague Convention in September 2020. It was not disputed that the children had been habitually resident in Italy at the time of removal. Mostyn J asked himself how the Appeal Court of Rome's interim custody order should be treated when considering the discretion not to return under article 13. He judged that "unless it could be shown that the order was made on a false basis (whether by virtue of fraud, mistake or a major unexpected change of circumstances), or that it was obtained by procedurally unfair means, then the exercise of discretion should almost invariably lead to the responsive order being given effect". The mother had not demonstrated that the children faced a grave risk so as to provide a defence under article 13(b), and although the children strongly objected to being returned to their father, in Mostyn J's view they had been subjected to indoctrination and manipulation, and thus he did not place much weight on their objections. The discretion against return would not be exercised, and the children had to be returned to Italy no later than Sunday, 14 February 2021. Judgment, 25/01/2021, free

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