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Hague Convention 1980

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  • The father appealed against the dismissal of his application under the 1980 Hague Convention for the summary return of his eight-year-old daughter to Poland. The judge had determined that there was a grave risk that returning her to Poland would expose her to physical or psychological harm. The father argued that the judge had failed to apply the correct legal principles; wrongly made or purported to make findings of fact; wrongly determined that the Polish authorities would not be able to protect the child following a return to Poland; and made a flawed decision in respect of her objections to a return. Moylan LJ found that there had been no analysis in the judgment of the child's circumstances were she to return to Poland nor of why or whether those circumstances would potentially expose her to a grave risk of harm, as required by Article 13(b). The sole focus in that section of the judgment had been on the allegations about past events. He concluded that the appeal had to be allowed. It would have been preferable, he said, if the court had been able to determine the application, but it was not in a position to undertake the broad analysis required, in particular in respect of how the discretion to make a return order should be exercised in the light of the judge's conclusion that the child objected to returning. Newey LJ and Sir Andrew McFarlane, President of the Family Division, agreed. The appeal was allowed and the matter was remitted to be reheard, as soon as could be arranged. Judgment, 18/09/2021, free
  • Both parents lived in England. The mother had taken their three-year-old daughter to India in March 2019, and returned without her, leaving the child with the maternal grandparents. Though born in England, the daughter was not yet a British citizen. In April 2021, the father had applied under the inherent jurisdiction for a wardship order and a return order. This hearing was to determine whether the court had jurisdiction (including the question of habitual residence), and whether the father's delay in issuing proceedings was fatal to his application. Peel J concluded that the child had continued to be habitually resident in England and Wales and had been so at the date of the father's application. He noted that the mother had offered very little evidence about the child's situation in India. As to delay, that would be a factor in considering whether wardship and return orders should be made, but it did not entitle the court to strike out the claim unless the prospects of success had been so hopeless as to justify the exercise of case management powers in such a profoundly draconian way. Judgment, 18/09/2021, free
  • The mother applied for a costs order following the dismissal of the father's applications for return orders under the Hague Convention 1980 or the inherent jurisdiction in respect of their two daughters, aged 11 and 12. Poole J concluded that, although the father's conduct could not, in general, be characterised as unreasonable or reprehensible, he had been guilty of unreasonable conduct in making a wholly unnecessary application for a location order, and doing so without notice. Still, the costs order should be reasonable and proportionate, and the direct costs to the mother of that application would have been a relatively small part of her total costs, which came to £27,316.10 inclusive of VAT. Poole J ordered the father to pay her costs in the summarily assessed sum of £4,000 plus VAT of £800, a total of £4,800. This was a reasonable sum having regard to all the circumstances including the financial circumstances of the parties and their conduct in relation to the dispute. Judgment, 10/08/2021, free
  • Both parents were French and the child had always lived in France. In March 2020 the mother had brought the son to England on holiday. A return had initially been been prevented by the Covid lockdown, but they had subsequently stayed in England. The father had commenced Hague Convention proceedings, and his application for an order for the son's return to France had been granted. The mother appealed the judge's decision as to her Article 13(b) defence on five grounds, for example that there was insufficient evidence to decide that she would return with the child to France. In Sir Andrew McFarlane's view, there was no basis for asserting that the judge had fallen into error by imposing an objective assessment of what he considered a reasonable mother would do. The judge had been correctly engaged in determining whether this mother would not go to France if the court required her son to do so. Cohen J had determined this issue against her and, on that basis, correctly held that her Article 13(b) claim was not established. Moylan LJ and Arnold LJ agreed, and the appeal was dismissed. The judge's order would stand and steps now had to be made to repatriate the child to France. Judgment, 10/08/2021, free
  • The mother, born in England, appealed against an order under the Hague Convention for the summary return of her son to South Korea. After the family travelled to South Korea in December 2019, the mother had been granted a three-month tourist visa. On her case, she had then been unable to return to England until the maternal grandmother came to assist her departure in March 2020, at which point they had left, with the child, and without informing the father. The principal issues now were the determination of the child's habitual residence and the judge's approach to Article 13(b) defences. The mother also raised issues concerning the differences between the judge's ex tempore judgment, a supplemental judgment, and the final approved judgment. Baker LJ decided that the judge had been entitled to conclude that the child had acquired habitual residence in South Korea shortly after his arrival, but the assessment of the Article 13(b) defence had been flawed. It was unclear whether or not the judge had concluded that there was in fact an Article 13(b) grave risk. It was unclear whether the judge had found that there was no risk of the father removing the child from his mother's care or alternatively that there was a risk but it was ameliorated by his undertaking not to do so, notwithstanding that it was unenforceable in the Korean court. The judge's analysis of the protective measures had also been flawed. It was not therefore necessary to go on to consider whether the process adopted by the judge was procedurally unfair or amounted to a procedural irregularity. Lewis LJ and King LJ agreed, and so the appeal was allowed. The question of whether the mother could establish a defence under Article 13(b) would be remitted for determination by another judge of the Family Division. Judgment, 03/08/2021, free

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