Children

Re X (A Child) [2019] EWHC 479 (Fam)
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
JK v LM [2020] EWHC 1566 (Fam)
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
M v G (Hague Convention: Article 13(b) defence) [2020] EWHC 1450 (Fam)
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
AX v CY (Article 12; Settlement) [2020] EWHC 1599 (Fam)
An application under the Child Abduction and Custody Act 1985 and the Hague Convention 1980 for the eight-year-old daughter to be returned to Spain. The mother had brought the child to the United Kingdom without warning, and had refused to disclose their location. She asserted that there had been a history of domestic abuse. It was common ground that the removal was in breach of the father's rights of custody, and that the removal was from the child's country of habitual residence. The mother raised four defences: settlement under Article 12; grave risk of harm under Article 13(b); the child’s objections to return under Article 13; and breach of the daughter's human rights under Article 20. Mr Robert Peel QC was not convinced that the evidence demonstrated the physical stability, integration and permanence needed to establish the defence of settlement. The mother fell far short of establishing that there was a risk of harm to the child. The defence regarding the child's objections was abandoned by the end of the hearing, but would have also failed, as did the defence under Article 20. An order for the daughter's return would be made. Judgment, 19/06/2020, free
SH (A Child) [2020] EWHC 1510 (Fam)
The mother's application for an extension of time to appeal, and for permission to appeal, against a child arrangements order. The mother said that the delay had been due to the shock caused by the order, and by her being physically unwell. The five grounds of appeal included that the judge had placed undue weight of the views of the child, and insufficient weight on factors such as the need for balance in the child's life, the views of the former caseworker, the risk of harm, and the fairness of the hearing. Williams J found that the explanation given by the mother for the delay was unsatisfactory. In his view, the judge's conclusion that the daughter's views were her own and should be given significant weight appeared to be unassailable. The criticism regarding the daughter's alleged need for greater balance was not supported. The Recorder was justified in departing from the caseworker's recommendations. The history of the case did not suggest an obvious risk of the child becoming estranged from the mother. Williams J was unable to discern anything which impinged upon the fairness of the process. He refused to grant an extension of time to appeal, and he refused to grant permission to appeal. Judgment, 16/06/2020, free
G v D (Art 13b: Absence of Protective Measures) [2020] EWHC 1476 (Fam)
The father applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention, in respect of two children, aged seven and four. The children were born in Belgium and had always lived there until being taken by both parents to Spain for six weeks, and then to England by the mother, in the company of a new acquaintance with multiple convictions. The move to Spain, it was suggested, had been to prevent the Belgian social care authorities from undertaking safeguarding interventions. However, the Belgian authorities informed the court that they would not be taking any active steps towards the return of the children to Belgium, and that in their view the children should be with the mother. The local authority had completed a parenting assessment of the mother which concluded that she was unable to care safely for the children. The father had been accused of domestic abuse, and though in England at the time had failed to attend assessment sessions due to drug use. The children were now in foster care, and in regular contact with the mother. MacDonald J found that the exception under Article 13(b) of the 1980 Convention was made out. There was no evidence before the court to confirm who would take custody of the children upon arrival in Belgium, what arrangements would be made for their care, or how contact with their mother would be facilitated. Ordering their return to Belgium would place them in an intolerable situation for the purposes of Article 13(b). The father's application was dismissed. Judgment, 14/06/2020, free
CS v FB [2020] EWHC 1474 (Fam)
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
H (Costs) [2020] EWHC B17 (Fam)
The father sought an order for the mother to pay one half of the costs of the expert witnesses instructed in the case. The child's care had been transferred from the mother to the father, and the mother had declined to engage in the therapy required by the court and thus contact had not yet been resumed. The mother opposed this application on the grounds that she could not afford to pay a one-half share, and that she did not appoint the parental alienation expert, nor the other professionals involved, nor agree to their instruction. Keehan J said that the latter argument was "totally misconceived": the court had considered their instruction to be necessary and had given permission for their instruction. Keehan J was not persuaded that the mother did not have the means to pay the costs sought by the father. She was ordered to pay £2,783.60 forthwith and the remaining balance in 16 instalments of £500 per month. Judgment, 05/06/2020, free
Re Q [2020] EWHC 1109 (Fam)
An appeal from a case management decision made in proceedings concerning the welfare of a six-year-old girl. The parents (the mother European, the father English) had been separated for some years. The mother made allegations of sexual abuse against the father, and contact was resumed after a finding of fact that there had been no sexual impropriety. The conclusion of an expert psychological report was that it would be in the child's interests for the father to become the primary carer. The Guardian recommended an immediate change of residence. The mother applied for an adjournment on the basis that the matter could not be determined fairly at a remote hearing. The application was refused, but at the start of the hearing, after reading the decision in Re P (A Child: Remote Hearings) [2020] EWFC 32, the judge vacated the hearing, with the matter to be relisted before her for a face-to-face final hearing in due course. The father appealed on the grounds that the judge had misapplied the judgment in Re P; there had been no material change in the circumstances between the two hearings; insufficient weight had been afforded to the child's welfare; and insufficient regard was given to the overriding objective in FPR rule 1.1. Sir Andrew McFarlane, the President of the Family Division, allowed the appeal. There had not been new material in the father's position statement, and the judge's approach to the child's welfare had been in error. The decision to vacate the remote hearing would be set aside, and the matter remitted to the judge to redetermine the question of how and when the final hearing was to take place. Judgment, 05/06/2020, free
Drop in private family law cases received by CAFCASS
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