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- 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
- The three-year-old daughter was a British citizen who had lived with the maternal grandmother in India since 2018, after the mother returned to England without her. The father had applied for summary return under the inherent jurisdiction of the High Court. The mother had applied for a specific issue order for "permission to change jurisdiction of the child", which Mostyn J took to be an application for a declaration that the child was habitually resident in India. A preliminary issue arose regarding whether the court had jurisdiction in the case. Mostyn J found as a fact that the daughter was now habitually resident in India and thus there was no jurisdiction in this case under Brussels II article 8. He also found as a fact that at no time up to 26 August 2020 had the mother unequivocally accepted that the English court had jurisdiction to deal with parental responsibility issues concerning her daughter. In his judgment, it would be wholly unprincipled, and a wrong exercise of the court's powers, for him to make orders on the father's application pursuant to the High Court's inherent powers in circumstances where the father had not established jurisdiction under either Brussels II or sections 1–3 of the Family Law Act 1986. His judgment was that the jurisdiction of the court depended on the territorial reach of Brussels II article 10. A question was referred to the Court of Justice for an urgent preliminary ruling: "Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?" Pending receipt of the answer to the question the proceedings would be stayed. Judgment, 09/11/2020, free
- The eleven-year-old son was born in Italy and was an Italian national, as was the mother. The father had brought the son to England; the mother sought his summary return. The father asked the court to exercise its discretion to refuse to so order on the basis of the exceptions under Article 13(a) (asserting that the mother had not been exercising her rights of custody at the relevant time) and Article 13(2) (asserting that the son objected to returning to Italy and had attained an age and degree of maturity at which it was appropriate to take account of his views). Mr Richard Harrison QC, sitting as a deputy High Court judge, thought it was clear that the mother had actually been exercising her rights of custody. He also found that while the son had attained the requisite age and degree of maturity and genuinely objected to returning, those objections were the product of significant influence on the part of the father, who had previously recruited the child as a co-conspirator in the wrongful removal. The child's views would not be decisive of the outcome. Welfare considerations led him instead to order the child's return to Italy, albeit not until the half-term holidays. Judgment, 26/10/2020, free
- The mother appealed from a return order made under the 1980 Hague Convention. She contended that the judge had been wrong to decide that the children were habitually resident in Germany at the date of her wrongful retention of them in England. It was submitted on her behalf that the judge had focused on whether the children had lost their habitual residence in Germany, rather than on the relevant question of whether their residence in England had acquired the requisite degree of integration and stability. In Moylan LJ's view, the appeal had to be allowed. On a proper application of the appropriate test, the children had been habitually resident in England at the date of their retention, and thus the father's application under the 1980 Convention had to be dismissed. Simler LJ and Sir Stephen Richards agreed. Judgment, 25/08/2020, free
- The mother applied under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention 1980), and in the alternative under the inherent jurisdiction, for the return of her eight-year-old son to Russia. She contended that the father had wrongfully removed or retained the child in 2019. The father opposed the applications, raising issues of whether, at the relevant time, the child had been habitually resident in Russia and the mother had had rights of custody, whether the child would be at risk following a return, and whether the child objected to a return. The father's own prior applications, including for prohibited steps orders, had been stayed pending determination of the mother's applications. Cobb J found that the son had developed a sufficient degree of integration in life in Russia, while living there for ten months or so, to acquire habitual residence. The removal had indeed been in breach of the mother’s rights of custody. He did not believe that the son would be likely to suffer the “severe degree of psychological harm which the 1980 Hague Convention has in mind” (per Lord Donaldson) and the father therefore failed in his case under Article 13(b). Cobb J did not regard the son's objection to returning as being powerfully expressed or adamant. He reached the conclusion that a return to Russia was in the son's interests, where fully-informed welfare-based decisions could be made in a court to which both parents had ready access. Judgment, 27/07/2020, free
- The father applied under the inherent jurisdiction of the High Court for an order for the summary return of four children, aged 1, 9, 13 and 14, to the jurisdiction of Pakistan. The mother opposed the application. Both parents and all four children were Pakistani nationals, but the three oldest children had UK passports. The mother alleged domestic abuse, as did the three oldest children. The father alleged a scheme to marry the children off for immigration purposes. MacDonald J found that the father had at times been an arrogant witness, pre-occupied with the impact of the case on his reputation, and dishonest in his evidence. He found that the mother had also been "economical with the truth". The children had been habitually resident in Pakistan at the time of their removal, but a welfare case against their summary return was made out. Returning them, against their wishes, would not be in their best interests. The father's application was dismissed, and a stay on the mother's Children Act 1989 proceedings was lifted. Judgment, 24/07/2020, free
- Both parents and the daughter were Brazilian nationals. The mother applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention. The child had been habitually resident in Brazil and had been wrongfully retained in England following a holiday. The father resisted the application on Article 13(b) grounds, and on the ground that the child objected to returning for the purposes of Article 13. The maternal grandparents and a maternal aunt had alleged violent conduct towards the child on the part of the mother, and this had been confirmed by the child in conversation with the the Cafcass Officer. MacDonald J was satisfied that there was a grave risk that returning the daughter to Brazil would expose her to harm or an intolerable situation for the purposes of Article 13(b). It was clear that the daughter had settled well in England and was having her physical and emotional needs met here. He declined to make a summary return order and dismissed the mother's application. He emphasised that his decision was reached upon the very unusual facts of this case, i.e. that the holiday had provided the opportunity for the child to alert her other parent and the authorities to the risks she faced in Brazil. This was not a paradigm case of wrongful retention following a holiday. Judgment, 21/07/2020, free
- The son had been born in Poland and brought to England by the mother. She now appealed from a return order made under the 1980 Hague Convention. Moylan LJ's view was that the deputy High Court judge hearing the case had not engaged sufficiently with the factors required to determine the issue of habitual residence, and it was unclear whether he had considered where the son was habitually resident at any date other than one particular month. His analysis had an undue focus on the mother's intentions and the question of whether she had formed an intention to stay permanently in England. Peter Jackson LJ and Newey LJ agreed. The father's application under the 1980 Convention would have to be reheard, unless the parents could come to an agreement. Judgment, 20/07/2020, free