Family Law Hub

Wrongful Removal

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  • The mother had wrongfully retained the son in England at the end of an agreed six-month visit, and then, after a court-ordered return to Ukraine, she had wrongfully removed him to England. In Hague Convention proceedings intended to secure his son's return, the father applied for disclosure of material generated during the child's successful application for asylum in England. This material, the father argued, formed the basis upon which he was being denied a remedy in the Convention proceedings. Prior to asylum being granted, orders had been made (and upheld) requiring the child's return. The question now was whether the court had locus or jurisdiction to take any further steps in the 1980 Convention proceedings or if they had come to an end by operation of law. Roberts J acknowledged the father's frustration at being unable to enforce the orders which he had secured, and the potential unfairness of an asylum process in which he had no right to see or challenge the evidence submitted. However, she dismissed the application for disclosure of the asylum file, describing it in part as little more than a fishing expedition into the prospects of a collateral challenge to the Secretary of State's decision. The child's Article 8 rights, those of his mother and the wider policy considerations underpinning the confidentiality of the asylum process tipped the scales firmly in favour of refusing disclosure. Different considerations might apply in proceedings under the Children Act 1989 or otherwise. The return orders would be set aside. Judgment, 08/10/2021, free
  • Both parents lived in England. The mother had taken their three-year-old daughter to India in March 2019, and returned without her, leaving the child with the maternal grandparents. Though born in England, the daughter was not yet a British citizen. In April 2021, the father had applied under the inherent jurisdiction for a wardship order and a return order. This hearing was to determine whether the court had jurisdiction (including the question of habitual residence), and whether the father's delay in issuing proceedings was fatal to his application. Peel J concluded that the child had continued to be habitually resident in England and Wales and had been so at the date of the father's application. He noted that the mother had offered very little evidence about the child's situation in India. As to delay, that would be a factor in considering whether wardship and return orders should be made, but it did not entitle the court to strike out the claim unless the prospects of success had been so hopeless as to justify the exercise of case management powers in such a profoundly draconian way. Judgment, 18/09/2021, free
  • Both parents were British citizens with Overseas Citizens of India status, and both had been living in India. One day before the first court hearing in child welfare proceedings brought by the father, the mother had flown their five-year-old son to England. The father now applied under the court's inherent jurisdiction for the summary return of their son to India, and asserted that this was a "hot pursuit" case. The application was opposed by the mother, who alleged domestic abuse and coercive behaviour. Cobb J reached the clear conclusion that it was in the boy's best interests to be returned to India forthwith, and for his future to be determined in the courts there. He was habitually resident in India, while his situation in England was at best transitory and fragile; for example, he was not attending school here. In Cobb J's judgement, the mother's clandestine and unilateral action in bringing the boy to England had been primarily prompted by her wish to avoid engaging in family court proceedings in India. The allegations of domestic abuse had been laid before the Indian court in the child welfare proceedings there. In his view, the risk of harm to the mother from the alleged abuse could be appropriately mitigated by the protective measures offered by the father, the fact that she could return to live with her parents, and the availability in India of civil law process (the equivalent of non-molestation proceedings). He was satisfied that the Indian court was appropriately seised of child welfare proceedings regarding the child. Judgment, 31/08/2021, 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 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

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