Family Law Hub

Child Abduction

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  • An appeal was brought by a father, and separately by his three children, against the registration in 2020 of a Polish custody order from 2016, which had vested custody and care of the children with the mother in Poland. The children were currently in the care of their father and living in England. He had not returned them after a summer holiday visit in 2019. The mother had sought summary return in 2020, and the application had been refused, due to objections and risks relevant to Article 13 of the Hague Convention 1980. Cobb J allowed the appeal. He was satisfied that that the father and the children had made good their case for the court to not recognise the Polish custody order. The December 2016 order was irreconcilable with a later judgment relating to parental responsibility given in Poland in May 2021. Also, the judgment refusing summary return was "a later judgment relating to parental responsibility given in the Member State in which recognition is sought", per Article 23(e), which was irreconcilable with the December 2016 Order. If he were wrong on either of those points, he was satisfied that it would be contrary to public policy to recognise and enforce an order made in a Member State which was contrary to a finding of this court that an Article 13(b) 1980 Hague Convention exception had been made out. Accordingly, the order for registration was set aside. Judgment, 09/07/2021, free
  • The Italian father sought an order for the return to Lanzarote of his two sons, aged 3 and 1, pursuant to the 1980 Hague Convention. The application was opposed by the British mother, who had brought both children to England after removing the older boy from school. The parents had never been married. Attempts to settle proceedings through mediation with Reunite had been unsuccessful. The father had been out of work, and the mother maintained that she would have no means of supporting herself should she and the children return to Spain. She would not be immediately eligible for benefits, having been away for 90 days. Although he regarded the proposed arrangements for the mother and children in the event of their return to Lanzarote as unsatisfactory, Cobb J reached the conclusion that the mother had, on balance, failed in her efforts to demonstrate that her case fell within the limited exception afforded by Article 13(b). In the circumstances, he was obliged to make a return order in respect of the children. However, he decided that it would be wrong to require their return prior to the hearing within the domestic custody proceedings in the Spanish court, where a welfare decision would be made by reference to the children's best interests. Judgment, 05/07/2021, free
  • The mother and one-year-old son were currently in the jurisdiction of England and Wales. The father applied for the son's summary return to the Republic of Ireland. The mother conceded that the son had been habitually resident in the Republic of Ireland; that the father had rights of custody which he had been exercising; that she had unlawfully removed the child without the consent of the father; and that the provisions of Article 12 of the 1980 Hague Convention applied, subject to whether she was able to establish a case within the ambit of Article 13(b). As to this, she made extensive complaints regarding the conduct of the father and his family during the course of their short marriage, alleging physical and emotional abuse, and that her life would be at risk if she were to return to the Republic of Ireland. The key question for the court, said MacDonald J, was what the situation would be for the child if he were to be returned forthwith to his country of habitual residence without his mother. He concluded that in this case the mother had not satisfied the court that the separation of the son from her care and placement in his father's care would expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation for the purposes of Art 13(b). The mother's allegations were not irrelevant, but there was no evidence that the child had ever come to harm in either of his parents' care. The court had confidence that the welfare authorities in the Republic of Ireland would take steps to safeguard the child should it be necessary to do so. In the circumstances, a return order had to be made. Judgment, 03/07/2021, free
  • The father had applied without notice to the mother for an order making their four-year-old son a ward of court, a prohibited steps order preventing the mother from withdrawing funds held in an account earmarked to pay the son's school fees, and a port alert order. Both parents lived in London, and the child lived with the father. Mostyn J's decision was to dismiss the father’s application for a port alert order. Firstly, because it should have been made to the Family Court and not to the High Court, and secondly, because he was not satisfied that there was a real and imminent risk that the mother was going to remove the son from the jurisdiction and return with him to Slovakia or the Czech Republic. Her only contact with the child was supervised, and Mostyn J thought it unlikely that she would be able to abduct the child in such circumstances. He also considered whether the Family Court had the power to issue a freestanding port alert order, and decided that it did. He provided guidance on the correct method of applying for a freestanding port alert order, and supplied a pro forma port alert order modified for use in the Family Court. Judgment, 02/07/2021, free
  • The mother appealed from an order, following the father's application under the 1980 Hague Convention, for the parties' children, aged 4 and 2, to be returned to the USA. The judge had decided that the mother had not established either of the grounds relied on by her in opposition to the application: acquiescence and Article 13(b). The situation was complicated by the mother having said that she would not return to the USA with the children. The mother appealed on three grounds: the judge's approach as to Article 13(b); the judge's approach to the issue of acquiescence; and whether her other, 14-year-old child's voice was adequately reflected in the proceedings. In Moylan LJ's view, the latter added nothing of substance to the appeal, and the judge had been entitled to conclude that the father's conduct did not evidence an intention to acquiesce. However, the judge had not been entitled to reject the mother's allegations regarding the father, and had not analysed whether the allegations, if true, would potentially create a grave risk within the scope of Article 13(b) nor how any such risk might be addressed. Moylan LJ's view was that returning the children to the USA in the absence of their mother would create a grave risk of their being exposed to physical or psychological harm or of them otherwise being placed in an intolerable situation. Baker and Arnold LJJ agreed. The appeal was allowed and the application for a return order was dismissed. Judgment, 01/07/2021, free

Latest know-how

  • 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
  • Judgment concerning return of a child to the US where the mother had successfully obtained a ruling in Texas that the child had been wrongfully retained in the US, the father had complied with that order and then had appeals turned down by the High Court and Court of Appeal. Father's appeal allowed. Case note, 18/02/2014, free

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