C v M
[2023] EWHC 208 (Fam)
C v M & Anor.
18 May 2023
[2023] EWHC 1182 (Fam)
High Court
A dad wanted his kids back in Mauritius after their mom took them to England. A judge initially agreed, but the older child said returning would be dangerous and upsetting. The judge then heard more evidence about how much the kids don't want to go back and decided to keep them in England because separating the siblings would be really bad for them.
Key Facts
- •Father applied for the return of his children (X, 12, and Y, 5) to Mauritius under the 1980 Hague Convention.
- •Mother unilaterally removed the children from Mauritius to England in October 2022.
- •Initial return order was made in February 2023, but subsequently set aside in April 2023.
- •X opposed return, raising Article 13 defenses of objection and grave risk of harm.
- •The case involved multiple hearings and applications, including an application for an adjournment and permission to appeal.
- •The court considered additional evidence regarding X's objections, including statements from her headteacher and solicitor.
Legal Principles
Article 13(b) of the Hague Convention: Grave risk of harm
Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144; Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10; Re C (Children)(Abduction: Article 13b) [2019] 1 FLR 1045
Article 13 of the Hague Convention: Child's objections
Re M (Children)(Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074; H v K (Return Order) [2017] EWHC 1141 (Fam)
Hague Convention policy considerations: Prioritising the child's return to their habitual residence unless a defence under Article 13 is established.
Hague Convention 1980
Welfare considerations of the child are paramount.
Implied throughout the judgment.
Outcomes
The court refused to order the return of either child to Mauritius.
The court found that the Article 13(b) defense of grave risk of harm was established for both children, and that X's objections to returning, given their strength and the circumstances, warranted refusing her return. The court also considered that separating the children would be detrimental.