C v M (A Child) (Abduction: Representation of Child Party)
[2023] EWCA Civ 1449
R (Child Abduction: Parent’s Refusal to Accompany), Re
30 October 2024
[2024] EWCA Civ 1296
Court of Appeal
A dad tried to get his kids back from their mom who took them to England from France. A judge said it was too risky to send the kids back to the dad alone because the mom said she wouldn't go back, and the judge worried about the kids' safety and well-being. Even though the judge made a small mistake in how he decided the case, a higher court agreed with the outcome because it was still too risky to send the kids back without their mom.
Key Facts
- •Father applied for summary return of three daughters to France under the 1980 Hague Convention.
- •Mother, British, took children to England from France in October 2023.
- •Parents had frequent arguments; mother ended marriage and moved to England.
- •Father initially accepted mother's decision but later sought return of children.
- •Mother argued against return based on consent, acquiescence, and Article 13(b) (grave risk of harm/intolerable situation).
- •Judge found father acquiesced to mother's decision for a period.
- •Judge found a grave risk of psychological harm and intolerable situation if children returned to father's sole care, considering mother's assertion she wouldn't return.
- •Father appealed, arguing judge misapplied Article 13(b) and erred on acquiescence.
Legal Principles
Article 13(b) of the 1980 Hague Convention: A return order can be refused if there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
1980 Hague Convention on the Civil Aspects of International Child Abduction
Assessment of Article 13(b) claims involving allegations of domestic abuse requires an evaluative assessment of the allegations.
Re A (children) (Abduction: Article 13(b)) [2021] EWCA Civ 939
In assessing the likelihood of a parent not returning with a child, the court makes a summary assessment, not a binary finding of fact. The court considers various factors, including the circumstances, family history, reasons given for non-return, and the possibility of tactical maneuvering.
Various case law discussed in paragraphs 36-40
Acquiescence requires consideration of the remaining parent's subjective intention.
In Re H (Minors) (Abduction: Acquiescence) [1998] AC 72
Court should not ignore the effect on the mother’s psychological health where her health might severely impact her ability to care for the child on return.
S v B (Abduction: Human Rights) [2005] EWHC 733 (Fam)
Outcomes
Appeal dismissed.
While the judge misdirected himself on the approach to the mother's assertion of non-return, the Court of Appeal concluded that the judge would have reached the same decision had he applied the correct test. The Court found a high likelihood the mother wouldn't return and that the risk of psychological harm/intolerable situation for the children remained.