JC v SS
[2023] EWHC 2063 (Fam)
A (Minors), Re
22 November 2023
[2023] EWHC 3537 (Fam)
High Court
A dad wanted his child back from the UK to Ireland. The mom said it was too dangerous due to abuse. The judge said the child could go back to Ireland, but the dad had to promise not to hurt or bother the mom, pay for their travel, and give the mom extra money. The judge thought the Irish courts could better handle the family problems.
Key Facts
- •Father (Irish) made a Hague Convention application for the summary return of his child, A (born in Ireland), from England to Ireland.
- •Mother (English) opposed the return, citing Article 13(1)(b) – grave risk of physical or psychological harm to A upon return to Ireland.
- •Mother alleged domestic violence and coercive control by the father and his extended family.
- •Mother claimed she was indoctrinated into a subservient role within the Traveller community and feared reporting incidents to Irish authorities.
- •Father denied the allegations, asserting that the mother could and should have raised them in Irish court proceedings.
- •Supervised contact between father and child in the UK was positive.
- •Mother had obtained a British passport for A without the father's consent.
Legal Principles
Hague Convention 1980: Article 12 mandates the summary return of a wrongfully removed child unless an exception under Article 13 applies.
Hague Convention 1980
Article 13(1)(b): Return is not mandated if there is a grave risk of physical or psychological harm or an intolerable situation for the child upon return.
Hague Convention 1980, Article 13(1)(b)
The burden of proof lies on the respondent (mother) to establish the Article 13(b) exception on the balance of probabilities.
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27
The court must evaluate the allegations, considering their detail, substance, and credibility, even in a summary Hague Convention proceeding.
Re C (Children) (Abduction, Article 13(b)) 2018, EWCA Civ 2834; Re A (Children) (Abduction, Article 13(b)) [2021] EWCA Civ 939; G v D, Article 13(b)
Protective measures can be considered to mitigate risks and enable return, unless those measures would be insufficient.
Re Y (A Child: Abduction: Romania. Article 13(b)) [2023] EWHC 1676
It is generally assumed that the authorities of the requesting state can adequately protect the child.
G v D, Article 13(b), (2021) 1FLR 36
The policy of the Hague Convention favors swift return to prevent harm from abduction and avoid havens for abductors in other jurisdictions.
Re D (a child) (abduction rights of custody) [2006] UKHL 51
Outcomes
Summary return of A to Ireland ordered.
While the court accepted the mother's allegations of domestic abuse and coercive control at their highest, it found that sufficient protective measures could be implemented to mitigate the risks to A upon return.