- Everything (323)
- Model letter (0)
- Practice note (1)
- Precedent (0)
- Uploads (0)
- Tools (0)
- Article (0)
- Case note (90)
- News (2)
- Polls (0)
- CPD course (0)
- CPD diploma (0)
- Training note (0)
- Webinar (1)
- Downloads (0)
- Form (0)
- Judgment (229)
- Practice direction (0)
- Rule (0)
- SI (0)
- Statute (0)
- International regs (0)
- 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
- The father applied for a summary inward return order in respect of a boy, one of three children, who was taken by the mother to both parents' native country of Sierra Leone and left there with her family. The mother cross-applied for an order permitting her retrospectively to relocate the boy. Mostyn J was also asked to make child arrangements orders regulating contact between the father and all three children. The father had not seen any of the children for three years. The mother alleged domestic abuse, and that the son had been involved in South London gang culture. The Cafcass officer recorded that the boy's emphatic wish was to remain in Sierra Leone until his education to GCSE level was complete. Mostyn J stated that the wishes of a Gillick-competent child on a particular issue, where they are not objectively foolish or unreasonable, should normally be given effect, and he was not satisfied that the child's wishes in this case were objectively foolish or unreasonable. The father's application for summary return was dismissed and the mother's application was granted. There would be supervised contact with the children, virtual at first, given the coronavirus, with the sessions recorded and the mother at liberty to stop them if the children became distressed. Mostyn J also commented on various procedural aspects of the case. Judgment, 18/05/2020, free
- The daughter and both parents were British citizens. The mother had returned to England with the daughter, telling the father that it was for a short break. The father sought the daughter's summary return to Lanzarote in Spain, where he lived. The mother opposed the application on the grounds that the child objected to returning to Lanzarote, and that there was a grave risk that a return would, as per Article 13(b) of the 1980 Hague Convention, cause physical or psychological harm or otherwise place the child in an intolerable situation. The CAFCASS Officer told the court that the child was very firm in her view that she would not wish to return to Lanzarote without her mother. Mr David Rees QC found that the child was objecting in Hague Convention terms to the return, and he was satisfied that he should exercise the discretion not to return her. Also, if the child returned alone, the father would not be in a position to both support her financially and provide care for her, and thus the objection under Article 13(b) was also made out. The application was dismissed and the child would remain in England and Wales. Judgment, 17/03/2020, free
- A four-year-old girl with British citizenship had been taken to Egypt, and the court had to determine whether she had been habitually resident in England and Wales before then and thus wrongfully removed, and, if she had not, whether the court had jurisdiction to order her summary return. The father contended that the removal was pursuant to the terms of an order made in Beirut. Both parents were Lebanese nationals, and both were currently in England, the child having been left with family members of the father. The mother had accused the father of domestic violence. MacDonald J was satisfied that the child had been habitually resident in this jurisdiction, and that the court retained jurisdiction under the inherent jurisdiction of the High Court. The daughter was a British citizen and both parents were here and intended to remain here, making this the appropriate forum for determining the welfare issues. Returning the daughter from Egypt would create the best chance of her resuming contact with her mother, and there was no one in Egypt with parental responsibility for her. She should be returned from Egypt. The existence of the Beirut order did not prevent this. Judgment, 17/03/2020, free
- The father was HH Sheikh Mohammed bin Rashid al Maktoum, Ruler of the Emirate of Dubai and Vice-President and Prime Minister of the United Arab Emirates. The mother was Princess Haya bint Al Hussein, a daughter of the late King Hussein of Jordan. The two children had come to this country with their mother in 2019, and arrangements for contact with the father were being considered. Upon the application of a number of media organisations, the President of the Family Division, Sir Andrew McFarlane, had decided that three judgments in the case should be made public. These included findings of fact that the father had on three occasions ordered and orchestrated the unlawful abduction and forcible return of two of his other children, involving on one occasion an assault at sea by armed commandos. The father had not appealed against the fact-finding judgment, but appealed against the President's decision to lift reporting restrictions. The Court of Appeal (Underhill, Bean and King LJJ) dismissed the appeal. Judgment, 06/03/2020, free
- An application for the summary return to Zambia of two children of British nationality, brought to England by their South African mother. Zambia had signed the Hague Convention on the civil aspects of international child abduction, but had not been accepted by the United Kingdom as a reciprocating party, and so this was instead decided under the inherent jurisdiction of the High Court. Before the abduction, one child had made allegations of sexual abuse against the father, but unsupervised overnight contact had been required to continue. With this in mind, Holman J was not satisfied that returning the children to Zambia was in their best interests, not without much fuller inquiry and fact finding. The mother had stated that she would not return to Zambia, and the court could not risk the potentially disastrous outcome of the children being returned to an unprotected situation without her. The application was dismissed. Judgment, 12/02/2020, free
- An application by the father pursuant to the Hague Convention 1980. The child was born in Brazil but the family had subsequently moved to England. The parents had been on an extended visit to Brazil when the mother left with the child, first to the USA and then returning to the UK. The father argued that the child was habitually resident in Brazil and that this was a wrongful removal. Judd J held that, while the family had not yet decided where they would live in the long term, the mother and child were habitually resident in England. Given the mother's long-standing residence in the UK and the plans that she and the father had made, she did not lose her habitual residence during that trip to Brazil. Though the father no doubt felt wrong-footed and insecure when the mother left, the plan to return to England had not changed and he had not revoked his consent to that. The father's applications were dismissed. Judgment, 04/02/2020, free
- The mother requested permission to take her nine-year-old son on holiday to Brazil. The boy was living with the father in England, while the mother had previously made and then withdrawn a wrongful removal claim under the 1980 Hague Convention. Roberts J accepted the mother's evidence that she intended to ensure the child's safe return at the end of any stay in Brazil. The risk was that she would change her mind once the boy was there or be persuaded by her family not to return him. On balance, Roberts J was persuaded that the potential benefits to the child of spending time with his mother in Brazil outweighed the potential risks of a wrongful retention, provided that certain protections, including mirror orders, were in place before the visit. Judgment, 14/01/2020, free