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- 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
- A fact-finding hearing to determine whether the courts of England and Wales had jurisdiction to determine welfare issues in relation to three children. The applicant was the mother of the three children, the respondent the father. Their precise history was disputed, but both parents had come to England as asylum seekers. The mother claimed to be from Yemen and the father claimed to be from Somalia, and they had three children. One was born in Sheffield, one in Yemen, and, after the family left the UK in 2008, the third was born in either Yemen or Saudi Arabia. Ms Sarah Morgan QC, sitting as a deputy High Court judge, came to the view that some of the evidence placed before her had been misleading and intended to mislead. The case had unusually difficult features, caused by the passage of time, and there was no agreement between the parties even as to that which she was being invited to consider and determine. She found that the family had left (and the mother had consented to the children's departure from) England and Wales in 2008 for the purposes of a holiday and not as a permanent relocation. Immediately before leaving, the family had been habitually resident in England and Wales. Neither before nor once they had left had the mother indicated consent to a relocation. Thus there had been a wrongful removal in that the mother had consented to a holiday but not to a relocation, and/or there had been a wrongful retention when the father failed to arrange their return to England and Wales at the conclusion of the holiday. She found that the court had jurisdiction in respect of the two older children, and although the third child had never lived in or even visited the United Kingdom, jurisdiction in respect of her existed by reason of the doctrine of Parens Patriae. The matter was listed for consequential directions in consultation with Williams J. Judgment, 20/03/2021, free
- The father applied for the summary return of his children (aged 3 and 1) to Australia, pursuant to the 1980 Hague Convention. The father was a professional sportsman, born in Australia. The mother was born in England. Both children were born in Australia and had dual British and Australian citizenship. The mother brought them to England in February 2020, with the father's agreement, but did not return. The primary defence of the mother was that there was no relevant wrongful act of retention, because the original due date of return was frustrated by the Covid-19 pandemic, and no alternative due date ever substituted. Mostyn J described this as a novel argument, but "with some hesitation" decided that it should succeed. A wrongful act of retention, whether before or after the due date for return, required there to be a clearly agreed due date of return. By August 2020, when the father made it clear to the mother that he wanted the children to return to Australia, the children were habitually resident in England, and thus the Hague Convention could not be invoked. Even if there had been an operative retention by the mother, the husband's messages were all consistent with his acquiescing with her decision, and thus Mostyn J would have declined to order the return of the children to Australia. The father's application was dismissed. Judgment, 06/03/2021, free
- An application by the father for the summary return of his son to Italy, pursuant to the Hague Convention 1980 and, to the extent that it remained part of UK domestic law, Brussels IIa. The parents were Italian nationals who were born, married and lived in South Africa. Following a move to Italy, the couple separated and in October 2019 the mother brought the child to England, where he now lived with her at an undisclosed location. The father had reported the abduction to the Italian police. Mr David Lock QC, sitting as a deputy High Court judge, came to the conclusion that there was a strong possibility that the Mother had set out in a deliberate and calculated way to mislead the court, as to the father's consent to her bringing the child to England, and as to her ability to speak Italian. He declined to exercise the discretion to suspend the return order, thinking it better for the mother to engage with the Italian authorities investigating the abduction sooner rather than later. He made an order to require the return of the child forthwith to Italy. Judgment, 04/03/2021, free
- The mother contended that her three children, aged 14, 10 and 8, had been wrongfully retained in England. She applied, pursuant to the Hague Convention 1980, for their summary return to Poland and, pursuant to Brussels IIa, for the recognition and enforcement of an order made by the Polish District Court. The father opposed the return. The parents were Polish nationals, and the children had been born in the USA, before moving to Poland. The parents had separated after the father moved to England. During a holiday in England the children had complained of poor treatment by the mother, and the father had not returned them. Mr A. Verdan QC (sitting as a deputy High Court judge) found that the children's habitual residence had remained in Poland, but that the exception under Article 13(b) had been made out, the children being at risk of physical ill-treatment and unacceptable chastisement by the mother. He would not exercise his discretion to return the children to Poland pursuant to the Hague application. Considering the second application, he noted that he had not been made aware of any authority suggesting that the court, having refused a return via the Hague Convention, should at the same hearing enforce a return via Brussels IIa, and he declined to do so. He encouraged the parties to engage in mediation. Judgment, 03/03/2021, free
- The mother had unilaterally taken the children from Rome in July 2020. The children had not seen their father since. One child was born in England, the other in Italy after the family moved there in 2011. If not for the abduction, the children would have been interviewed by Italian social services in October 2020, ahead of the father's appeal regarding child arrangements being heard in November 2020. The Appeal Court of Rome granted custody to the father, describing the abduction of the children as "seriously harmful to their balanced emotional and physical development". The father had also commenced proceedings here under the 1980 Hague Convention in September 2020. It was not disputed that the children had been habitually resident in Italy at the time of removal. Mostyn J asked himself how the Appeal Court of Rome's interim custody order should be treated when considering the discretion not to return under article 13. He judged that "unless it could be shown that the order was made on a false basis (whether by virtue of fraud, mistake or a major unexpected change of circumstances), or that it was obtained by procedurally unfair means, then the exercise of discretion should almost invariably lead to the responsive order being given effect". The mother had not demonstrated that the children faced a grave risk so as to provide a defence under article 13(b), and although the children strongly objected to being returned to their father, in Mostyn J's view they had been subjected to indoctrination and manipulation, and thus he did not place much weight on their objections. The discretion against return would not be exercised, and the children had to be returned to Italy no later than Sunday, 14 February 2021. Judgment, 25/01/2021, free
- The father applied, under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return to Australia of three children aged 4, 9 and 13. The mother opposed the application on the basis that the retention had not been in breach of the father's rights of custody, that the father had acquiesced to the relocation, that there was a grave risk of a return exposing the children to harm, and that two of the children objected to returning and were old enough for their views to be taken into account. By the time of the hearing it was common ground between the parties that the children had been habitually resident in Australia, that the father shared rights of custody with the mother and that he had been exercising these rights. Mr David Rees QC, sitting as a deputy judge of the High Court, did not accept the mother's evidence that the father had given express consent to a permanent relocation. He found that the mother had made out an Article 13 exception in relation to the two older children's objections, but not with regards to grave harm. He exercised his discretion to direct the return of the children to Australia, but noted in a postscript that his order had not been carried into effect, the Australian courts having permitted, on an interim basis, the children to remain in England with the mother. Judgment, 20/12/2020, free
- An application for the summary return of the eight-year-old son to Australia, where he had always lived until being brought without warning to England by the mother. The application was made under the Child Abduction and Custody Act 1985, pursuant to Articles 3 and 12 of the 1980 Hague Convention. It was agreed that the son's habitual residence in Australia and the father's exercising of rights of custody at the material time had both been made out. The task for Mr Teertha Gupta QC, sitting as a deputy High Court judge, was thus to decide on a summary basis whether the mother had raised a valid defence under the 1980 Hague Convention and, if so, whether he should exercise his discretion not to return the child forthwith to Australia. He found that the Article 13(b) defence had not been established; there was no evidence to support the mother's assertion that the child had suffered severe symptoms of intolerable anxiety. Mr Teertha Gupta QC expressed concern that the mother's actions might be symptoms of a deeper wish to eradicate the father from the child's life. It was in the child's overall and long-term best interests to return to Australia forthwith. The father's application was granted. Judgment, 18/12/2020, free