Family Law Hub

Child Abduction

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  • The American father, living in the USA, had applied for an order for his four-year-old son's immediate return there under the 1980 Hague Convention. The son had dual nationality and lived with his mother, a British national, in England. The son had been born in England. A marital settlement agreement had been agreed to the effect that the mother and child would relocate to the UK, with the child spending his school breaks with his father in the US, a minimum of three visits. The pandemic and quarantine restrictions had prevented this from happening as planned, and the father had filed a petition with the Circuit Court of his state for contempt and to modify custody. Mostyn J noted that "it is elementary that the 1980 Hague Convention can only be invoked where the child's habitual residence has not changed to the new state prior to the alleged act of removal or retention". The question of habitual residence was one of pure fact. In this case, there was no possible basis for saying that the removal was not lawful, and Mostyn J was completely satisfied that the mother had not harboured a dishonest intention to later deprive the father of his spending time rights. There had been no wrongful removal, nor any wrongful retention, and the Convention was not engaged because the son had plainly acquired habitual residence in England by the time in question. The father's application was dismissed. Judgment, 02/05/2021, free
  • The Swiss father applied under Article 8 of the 1996 Hague Convention for jurisdiction to be transferred to Switzerland, where the two-year-old daughter currently lived with him. The application was opposed by the British mother and the guardian. It was agreed that the daughter had been abducted from England in June 2020, when the paternal grandparents had paid for a private jet to take the father and daughter to Switzerland. The mother had not seen the daughter in person since August 2020. Arbuthnot J found that the court could not transfer these proceedings under Brussels IIa, and Article 8 of the Hague Convention did not apply in a case of wrongful removal unless the conditions in Article 7(1)(a) or (b) had been met. In her judgment, the courts here were better placed to determine the daughter's best interests. Delay was also a significant factor: this was a very young child, and her living arrangements should be determined much sooner than Swiss proceedings would allow. If there was a discretion to transfer under Article 8, Arbuthnot J would not have exercised it. There was no alternative power to transfer under the Family Law Act, and if there were, she would have exercised her discretion to not transfer the proceedings. The question of contact would be decided separately. Judgment, 29/04/2021, free
  • The children, aged 8, 7 and 5, were all born in England and had been living with the father's brother in Nigeria since being abducted to that country by the father in 2019. The mother applied for an anti-suit injunction against the father, requiring him to discontinue Nigerian proceedings in respect of their children in circumstances where Lieven J had determined that: the courts of this country had jurisdiction over the children by reason of their habitual residence; England and Wales, rather than Nigeria, was the natural forum; and the English court was substantively seised of ongoing proceedings concerning wardship and the welfare of the children. The father and uncle had ignored and flouted numerous orders for contact, and the father had been arrested upon his return to England. Peel J considered whether the four required criteria for an anti-suit injunction were fulfilled: jurisdiction, a sufficient interest, an appropriate ground, and discretion. He found that they were, and had no hesitation in exercising his discretion in favour of making the order sought. The father was ordered to take the steps required of him in the Nigerian courts. Judgment, 28/04/2021, free
  • The Irish father sought the return of two five-year-old children to the Republic of Ireland under the Hague Convention. The mother, a British national currently living in England after a clandestine departure, opposed the application, while applying under the Children Act for leave to remove to Ireland in respect of her third child, in case a return order was made in respect of the other children. The father of the third child applied for a residence order and a prohibited steps order. Peel J made a return order for the first and second children upon their father undertaking, among other things, to pay weekly child maintenance and to not support any prosecution of the mother. Peel J also decided that the mother should be given permission to relocate with the third child to Ireland. Among other factors, the father of the third child had shown himself capable of violence to the mother and her children, and so the court could not be confident about entrusting the care of the third child to him. Judgment, 22/03/2021, free
  • An appeal from an order for the summary return of a three-year-old child to the USA. The mother was British and alleged an abusive relationship. The father was American and denied the allegations. The mother asserted that, after having found that her allegations were of a nature to engage Art 13(b) of the 1980 Hague Convention, the judge had been wrong to grant the father's application. She also issued an application asking the court to admit further evidence. Peter Jackson LJ found that the situation portrayed in letters from the mother's GP was markedly more severe than that previously described to the extent of being capable of influencing the outcome, and he would therefore admit the evidence. The judge had directed himself meticulously and he had methodically reviewed all the evidence that was before him. However, the appeal had to be determined in the light of the further evidence concerning the mother's mental health and family support, which showed an escalation in self-harming behaviour to the point where she could not currently live alone with the child in England, let alone elsewhere. Haddon-Cave and Elisabeth Laing LJJ agreed. The return order was set aside and the father's summons under the Convention was remitted for rehearing by the judge on an expedited basis. Judgment, 19/03/2021, 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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