Family Law Hub

Hague Convention 1980

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  • The daughter and both parents were British citizens. The mother had returned to England with the daughter, telling the father that it was for a short break. The father sought the daughter's summary return to Lanzarote in Spain, where he lived. The mother opposed the application on the grounds that the child objected to returning to Lanzarote, and that there was a grave risk that a return would, as per Article 13(b) of the 1980 Hague Convention, cause physical or psychological harm or otherwise place the child in an intolerable situation. The CAFCASS Officer told the court that the child was very firm in her view that she would not wish to return to Lanzarote without her mother. Mr David Rees QC found that the child was objecting in Hague Convention terms to the return, and he was satisfied that he should exercise the discretion not to return her. Also, if the child returned alone, the father would not be in a position to both support her financially and provide care for her, and thus the objection under Article 13(b) was also made out. The application was dismissed and the child would remain in England and Wales. Judgment, 17/03/2020, free
  • A father's application under the Hague Convention and Brussels II Revised for the summary return of his four-year-old daughter to Spain. The mother argued that the father had acquiesced to the removal and that the child would be at grave risk upon returning, due to the alleged domestic violence which had precipated the move to England. The parents were both British citizens who had moved to Spain as children. To Lieven J it seemed obvious from the father's texts that he fully understood that it was the mother's intention to stay in England with the child, and at no stage did he suggest he was seeking for the daughter to live permanently in Spain. This was a case such as those described in Re H (Abduction: Acquiescence) [1997] 1 FLR 872, where "the wronged parent, knowing of his rights, has so conducted himself vis-à-vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children". As to grave risk, Lieven J held that it would be totally irresponsible to return a young child in circumstances where there were very serious and credible allegations of domestic violence against the father, including that he assaulted the mother when she was pregnant. To do so would put the daughter in an intolerable situation and present a grave risk to her of significant psychological harm. The father's application was rejected. Judgment, 09/03/2020, free
  • An appeal against an order for three children to be returned to Germany, following their wrongful removal to Wales and then England by the mother. This appeal was brought by the eldest child, who argued that the judge's approach had been flawed, first, as to whether the child should have had separate representation, and second, regarding the child's objections to returning to Germany. In Moylan LJ's view, the judge had reached the right decisions. The decision not to join the child was "plainly right", and the judge had not given too much weight or insufficient weight to any relevant factor. King LJ and Patten LJ agreed, and the applications were dismissed. Judgment, 04/03/2020, free
  • An application by the father pursuant to the Hague Convention 1980. The child was born in Brazil but the family had subsequently moved to England. The parents had been on an extended visit to Brazil when the mother left with the child, first to the USA and then returning to the UK. The father argued that the child was habitually resident in Brazil and that this was a wrongful removal. Judd J held that, while the family had not yet decided where they would live in the long term, the mother and child were habitually resident in England. Given the mother's long-standing residence in the UK and the plans that she and the father had made, she did not lose her habitual residence during that trip to Brazil. Though the father no doubt felt wrong-footed and insecure when the mother left, the plan to return to England had not changed and he had not revoked his consent to that. The father's applications were dismissed. Judgment, 04/02/2020, free
  • The father in child abduction proceedings had applied for directions to implement a return order. The mother had brought the children from Texas to England in 2017, and had been ordered to return them. The Court of Appeal had held that it would be intolerable to return the children to the USA without their mother, but her application for a humanitarian parole visa had been rejected by the American immigration service. Knowles J was unable to vary the Court of Appeal's order, and so did not have the jurisdiction to entertain the father's application. The parties would have to consider whether to apply to the Court of Appeal for reconsideration of its order. However, she urged them to consider a child-focused, consensual end to the litigation, before further hearings eroded whatever goodwill remained. Judgment, 03/01/2020, free

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