Family Law Hub

Wrongful Removal

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  • 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 applied for his six-year-old daughter's summary return from England to Russia under the 1980 Hague Convention, alleging that the mother had wrongly removed or retained her. The mother defended the application, arguing that the father had consented to the daughter's removal from Moldova to England, and that the child had become habitually resident in England and Wales. The court had to determine the date of wrongful removal or wrongful retention, habitual residence, settlement, the Article 13(b) defence of grave risk of harm, and, if relevant, the exercising of the court's discretion whether or not to order return. Also whether, when parties had agreed to the retention of a child abroad for an identifiable period of time, and the left behind parent resiled from the agreement and demanded the return of the child before the expiry of that period, the refusal or failure of the travelling parent to comply with the demand rendered the child's retention wrongful at that time. Poole J found that parts of the father's evidence had been inconsistent, sinister, incoherent, difficult to accept and deliberately misleading. The removal of the daughter from Russia had indeed been in breach of the father's custody rights, but Poole J rejected without hesitation his evidence that there had been an agreement to return her there. There was no wrongful removal when the daughter was brought to England in 2018, and no wrongful retention until January 2019, by which point she was habitually resident in England. Had it arisen, Poole J would have exercised his discretion to refuse to return the child to Russia, and he would have found that the Article 13(b) defence of grave risk of harm or intolerability was established, one reason being that the mother was not a Russian citizen and would have little to no security or stability there upon return. He dismissed the father's application for summary return. Judgment, 14/05/2021, free
  • 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 father had sought an order for the American mother to return their 16-year-old daughter from the USA. A residence order had been made in his favour and he had been her primary carer for many years. The mother had arranged a plane ticket and American passport for the daughter without telling him. He had found out when the girl phoned him from the plane. The Hague Convention did not apply because of her age, so an application for wardship and return orders had been made under the inherent jurisdiction. Although the parties subsequently reached agreement, and now presented a consent order, Peel J considered it appropriate in this case to deliver a judgment, partly because jurisdictional issues arose and partly because he was of the clear view that it would assist the parties and their daughter to achieve a degree of closure. He concluded that the child had not acquired habitual residence in the USA at the relevant time, and he sympathised with the father's profound concern about the way in which the daughter had left the UK. However, the wishes of a nearly 17-year-old were likely to be determinative, absent powerful or compelling welfare interest to the contrary, and the daughter had quite simply decided that her future was in the USA. A return order would be an exercise in futility. Peel J granted the consent order sought. Judgment, 29/03/2021, 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

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