Family Law Hub

Child Abduction

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  • The father had brought the four-year-old daughter from Georgia to England in July 2020, without notice to the mother, who now applied for the child's summary return. The remaining issues were: (1) whether the court was bound by the decisions of the Georgian courts; (2) if not, whether the child had been habitually resident in Georgia when removed by her father in 2020; and (3) what, if any, protective measures should be put in place. It was plain, said Sir Jonathan Cohen, that the court in Georgia had not ruled on the question which he was asked to determine, and thus he was not bound by their decisions. He found that on the relevant date the child had been habitually resident in Georgia, and thus he would order her return. Discussion between the parents would need to take place before a further hearing, at which he would determine the remaining practical issues. Judgment, 15/10/2021, free
  • The father applied pursuant to the Hague Convention 1980 for the return of the three children (aged 5, 3 and 2) to Sweden, where they were habitually resident and had lived with the mother. The parents had shared joint custody, but the mother had removed them, without proper notification, to England, then Iraq, then back to England. The mother alleged domestic abuse during their marriage, and that the father and his family had previously abducted two of the children from her. She was described as having an abject fear of returning to Sweden, and the oldest son was said to share that fear. In Holman J's view, there was no doubt that she had abducted the children within the meaning and objects of the Hague Convention. If the father's alleged abduction of the children had been the trigger for removing the children, the circumstances and context of the case might have appeared markedly different, but following that incident she had been able to live with the children in Sweden for two years without molestation or interference from the father. None of her allegations came close to establishing an Article 13(b) defence. He ordered their return to Sweden forthwith, subject to various undertakings offered by the father. Judgment, 14/10/2021, free
  • A final child arrangements order had been made, and the child was to live with his mother. The father breached the order, abducting the child for seven days. He told the court that he had been planning the abduction ever since the order was made. He had borrowed a car and a flat from a friend in preparation. Arbuthnot J found the level of culpability to be high, and the level of harm to be medium. The child had found the abduction traumatic. Finding him had required much press involvement, and it was difficult to anticipate what the effect of those stories would be on the child's development. There were several aggravating factors. Arbuthnot J committed the father to prison for four months, to be released after two months, subject to recall and probation. Judgment, 13/10/2021, free
  • 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 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

Latest know-how

  • This case concerned an appeal by a mother (‘M’) against an order of Arbuthnot J under the Hague Abduction Convention (‘the Convention’) for the summary return of her son, IG, to South Korea. The leading judgment was given by Baker LJ (‘the judge’), with whom Lewis and King LLJ agreed. Case note, 29/07/2021, free
  • In a tweet: Successful application made under the Hague Child Abduction Convention despite a delay where mother (“M”) had been unaware of the Convention prior to her application. Case note, 08/07/2019, members only
  • Fresh guidance issued by The President, 13 March 2018, covering procedure, case management and mediation in international child abduction cases Practice note, 13/03/2018, free
  • Mr Justice Mostyn on whether he has the power to revoke a return order in proceedings under the Child Abduction & Custody Act. Case note, 08/07/2014, members only
  • Judgment by the President in child abduction case raising 2 points of general importance: 1) what powers the court has to compel third parties to secure return of an abducted child where they do not have parental responsibility or control over the child and; 2) the role, powers and proper basis for making orders concerning non-subject children in such proceedings Case note, 08/07/2014, members only

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