Family Law Hub

Child Abduction

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  • A third set of child abduction proceedings brought by the father pursuant to the 1980 Hague Convention in respect of the same two children, a boy aged 9 and a girl aged 6. The children had been born in England, and the family had moved to Morocco in 2016. The mother had brought the children back to England while the father served a prison sentence for adultery, a criminal offence in Morocco. The return of the children to Morocco had twice previously been ordered, but each time the mother had brought them back to England. Francis J found that the children had been habitually resident in Morocco at the time of the most recent removal to England. He found that the views of the children had been "poisoned", and thus would not make any difference to his decision, which was for the children to be returned to Morocco. The mother was ordered to pay the father's costs on the indemnity basis. The judgment was not anonymised, in the hope that publicity would prevent a fourth abduction. Judgment, 28/09/2020, free
  • An application by the father for the summary return of his two twin children to Croatia, pursuant to the provisions of the 1980 Hague Convention and Brussels IIa. The children were in England with their mother, living with her parents. The father had previously retained the children in Croatia without her consent, leading to the end of the couple's relationship, but the children had been found by the Croatian court to be habitually resident there. She accepted that the children had then been brought to England without the father's consent, but with reference to Article 13(b) claimed that the children were likely to suffer distress if required to return to Croatia without her. In the view of Mr David Lock QC, sitting as a deputy High Court judge, the evidence did not suggest that there was a grave risk of psychological distress sufficiently serious for Article 13(b) to apply. He made an order requiring the return of the children forthwith to Croatia. Judgment, 25/09/2020, free
  • The mother had brought the daughter to England without the father's knowledge. She alleged that he had racially and sexually abused her during their marriage; they had separated in 2014 and she had subsequently come out to friends as a lesbian. On arrival in the UK, she had applied for asylum on the basis of the fear of persecution from her family as a result of her sexual orientation, from which the South African authorities had been unwilling or unable to protect her. The father's application under the 1980 Hague Convention for his daughter to be returned to South Africa had been stayed, pending the determination of the mother's asylum claim. This was an appeal against that stay, on four grounds, including that the judge had erred in considering any form of refugee status to be an absolute bar to a return under the 1980 Hague Convention. The Court of Appeal (Hickinbottom, Moylan and Peter Jackson LJJ) noted that the case raised issues regarding the apparent tension between the objective of the Hague Convention 1980, to return a wrongfully removed or retained child expeditiously to their home jurisdiction, and the principle of the 1951 Geneva Convention, that refugees should not be returned to a country where they might be persecuted, as well as issues as to the rights of children in such situations. In their view, children with refugee status could not be returned under the 1980 Hague Convention to the country from which they had been given refuge. However, there was no bar where, as transpired to be the situation in this case, the child had been named as a dependant in an application for asylum by a parent, but had made no independent asylum claim. Even where a child had been granted or had applied for refugee status, the High Court was not prevented from determining an application or making a return order, though implementation might need to be stayed. The appeal was allowed. Judgment, 25/09/2020, free
  • An application by the father for the summary return of the daughter to Slovakia. The mother resisted summary return on the grounds that the daughter was settled in the United Kingdom, that the father had acquiesced in her removal, that the defence of intolerability under Article 13(b) applied, and that the father had not exercised rights of custody (the latter ground being dropped in the course of the hearing). The parents had not been married to each other. The father had last seen the child in January 2017, when the mother broke all contact with him. She moved to the United Kingdom in September 2017, in order, she told the court, to escape the father's intimidation of her. The father took no action to re-establish contact between January 2017 and January 2019, when he contacted his Slovakian lawyer. Lieven J had no doubt that the child was settled in England and Wales within the terms of the law and the Hague Convention, and happy here. She would not exercise her discretion to return the daughter; it would not be in her interests to return. Contact was a matter that could be properly considered by the English courts. Judgment, 24/09/2020, free
  • The father appealed from the dismissal of his application under the 1980 Hague Convention. The judge had decided that the child was habitually resident in Australia rather than France at the date of the retention in England and Wales, and thus in her view the Hague Convention did not apply. The Court of Appeal determined that the child had been habitually resident in France, but, since it was an issue in other pending cases, Moylan LJ addressed the issue of principle: whether there was power under the 1980 Convention to return a child to a state other than that in which they had been habitually resident. In Moylan LJ's view, "the 1980 Convention applies whenever the child is habitually resident in a Contracting State, other than the requested state, at the date of the alleged wrongful removal or retention", and "there is power under the 1980 Convention to order that a child be returned to a third state". This question had been expressly considered at the time of the convention's drafting and a proposal that the return should always be to the state of habitual residence had not been adopted. To confine Article 12 as suggested would fail to protect children from the harmful effects of their abduction. While Baker LJ and Phillips LJ agreed as to the child's habitual residence in France, they declined to express an obiter view on the issue of principle. Baker LJ warned of the danger of judges thinking that the degree of integration in a second country had to be equivalent to that enjoyed in the first for a child to acquire habitual residence. Judgment, 18/09/2020, 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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