Family Law Hub

Wrongful Removal

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  • The final hearing of the mother's application for her daughter's summary return to Poland pursuant to the 1980 Hague Convention or, alternatively, the inherent jurisdiction. In 2012, the mother had wrongfully removed the child from England, but the Polish court had found a defence under Article 13(b) to be made out. In 2015, the father had wrongfully removed the daughter from Poland, where she was at that time habitually resident, using a covertly acquired Algerian passport for her. The mother's 1980 Hague Convention application in England had led to a collection order in 2020, but she had needed to return to Poland and the child had returned to the father's care. The mother conceded during this hearing that, given her daughter's objections to a return to Poland, her applications could not succeed. The daughter urgently required finality as to where she would be living and with whom, said Gwynneth Knowles J, and that would be achieved by permitting the mother to withdraw her application. However, both parents needed to hear what their daughter was saying about contact and adapt themselves accordingly. Judgment, 12/07/2020, free
  • The father sought an order requiring the return of his daughter to the Czech Republic pursuant to the 1980 Hague Convention. After moving out, the mother had told him that they were living in the Czech Republic, and he had then discovered from her sister that they were actually living in England. Divorce proceedings had been initiated but not completed. The mother acted in person, with the help of a non-professional translator. Her belief was that the child would be subject to anti-Roma racism if returned to the Czech Republic. The court was required to determine: (a) whether the child was habitually resident in the Czech Republic prior to her removal to England in 2018, so as to engage the powers and obligations conferred by the 1980 Convention; and (b) if the 1980 Convention was engaged, whether the mother, who opposed the return of the child to the Czech Republic, could establish that such a return would give rise to a situation described in article 13(b) of the 1980 Convention. HHJ Hillier found that the daughter was habitually resident in the Czech Republic. No risks raised by the mother in respect of article 13(b) reached a level of seriousness as to be anywhere near to "grave". HHJ Hillier's discretion as to whether to return the child had not been engaged by a potential defence under article 13(b), but even if it had been, she would have exercised her discretion firmly in respect of return so that the child would be placed in the Czech Republic whilst her future welfare was determined. Judgment, 07/07/2020, free
  • The mother applied for the summary return of three children from Wales, where they lived with the father, to the Republic of Ireland. A fourth child lived with the mother. During a period of homelessness, the mother had asked the father to care for the four children on a temporary basis in his home in Wales. Upon her finding accommodation, the father had declined to return them, and she had collected the youngest from his school and taken him back to Ireland. The court had to determine: the nature of the agreement between the parents; whether the father had wrongfully retained the children; whether the children had been habitually resident in the Republic of Ireland; whether an article 13 exception had been established; and, if it had, whether the court should exercise its discretion not to order the children's return. Nigel Poole QC, sitting as a deputy High Court judge, concluded that the evidence did not establish that the mother had secured suitable accommodation by the given time. He was not satisfied that the father was guilty of wrongful retention of the children at any point prior to the application being made, and so the Convention and Regulations could not assist the mother in her application for summary return. The children's time in Ireland had been chaotic and peripatetic; they remained habitually resident in the United Kingdom throughout. The defence under Article 13(b) was made out: they should not be expected to tolerate returning to Ireland without the reassurance of stability and security. Had he found that there had been a wrongful retention, he would have had no hesitation in exercising his discretion so as to refuse return. The mother's application for summary return was dismissed. Judgment, 24/06/2020, free
  • The son had travelled to the United Kingdom with the mother for a three-month stay, with the father's consent. When they did not return the father made an application under the Hague Convention 1980. The mother relied upon the defence under Article 13(b), alleging domestic violence and drug use. It was agreed that the mother had retained the son here at a time when he was habitually resident in Australia and that this retention breached the father's custody rights. Theis J did not doubt that if the mother returned to the Australia with the child she would suffer emotional distress and mental anguish, but her pre-existing depressive and anxious tendencies would be a reality of her life wherever she was and could not be solely or mainly linked to a return to Australia. The issues raised did not, in Theis J's judgment, meet the threshold in Article 13(b). She was satisfied that the protective measures agreed would be able to mitigate any harm. She would order that the son should return to Australia, on a date to be fixed once current travel restrictions were lifted. Judgment, 21/06/2020, free
  • The proceedings concerned a seven-year-old girl, born in Brazil, and both parents were Brazilian nationals. In 2016 the mother had asked permission to take the child to Belgium on holiday, but instead came to England and had stayed here since, albeit without leave to remain. The mother told the court that she had no issue with the child being returned to the father's care, and a question arose as to whether she had capacity to conduct the proceedings. However, the expert evidence needed to determine whether she lacked capacity to conduct them could not be funded until she had been declared to lack capacity. Mostyn J thus made an interim declaration that she lacked capacity. The Official Solicitor would be appointed the litigation friend of the mother, and would then determine, with the benefit of expert evidence, whether the interim declaration should be converted into a final declaration. Judgment, 12/06/2020, free

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