P v O
[2023] EWHC 2128 (Fam)
AO v LA
24 January 2023
[2023] EWHC 83 (Fam)
High Court
Mom took her kids to England without Dad's permission. Dad wants them back in Ireland. Even though the kids don't want to go back and Mom says it's too hard for her, the judge said the kids have to go back to Ireland because Mom broke the rules. Ireland will help Mom and the kids if they need it.
Key Facts
- •Father applied for the return of his two children (aged nearly 11 and 8¾) to Ireland under the 1980 Hague Convention.
- •Mother admitted the wrongful removal of the children from Ireland to England.
- •Mother initially intended to return to Ireland with the children if a return order was made but later changed her position.
- •Mother argued for the non-return of the children based on grave risk of harm and intolerability (Article 13(1)(b)) and the children's objections (Article 13(2)).
- •Children expressed objections to returning to Ireland in a Cafcass report.
Legal Principles
The court must make a prediction of the likelihood of future harm when considering Article 13(1)(b) defences, using a forward-looking approach.
Re E (Children) [2011] UKSC 27
The 'grave risk' in Article 13(1)(b) requires a high probability of harm, generally exceeding the American Cyanamid 'real prospect' standard and often aligning with the civil balance of probability.
American Cyanamid Co v Ethicon Ltd [1975] AC 396, Cream Holdings Ltd v Banerjee [2005] 1 AC 253
Protective measures should be considered before assessing the likelihood of harm under Article 13(1)(b). If such measures can nullify the risk, the defence may fail.
Re E (Children) [2011] UKSC 27
Cross-examination is not always indispensable for fact-finding in summary proceedings. The court can often make findings on written evidence and submissions.
Carmarthenshire County Council v Y [2017] EWFC 36, Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm)
When considering children's objections (Article 13(2)), the court must determine if the child objects and has sufficient maturity; the objection gives rise to a discretion, not a mandatory bar to return.
Re M (Republic of Ireland)(Child’s Objections) [2015] 2 FLR 1074
Outcomes
The court ordered the return of the children to Ireland.
The mother failed to prove either the grave risk of harm/intolerability or the children's objections exceptions under Article 13. The court found the mother's arguments were largely based on her own unlawful actions and that Ireland had sufficient resources to address any immediate needs.