H v A
[2024] EWHC 997 (Fam)
H v E
23 February 2023
[2023] EWHC 381 (Fam)
High Court
Mom brought kids to the UK from Sweden. Dad wants them back, but Mom says Dad is abusive. The judge believed Mom, and even though there's a rule to send kids back to their home country, the judge decided it would be safer for the kids to stay in the UK because of the risk of abuse.
Key Facts
- •Father applied for the return of two children (X, 7, and Y, 5) from the UK to Sweden under the Child Abduction and Custody Act 1985 (incorporating the 1980 Hague Convention).
- •Mother opposed the return, citing acquiescence and grave risk of harm as defenses.
- •Mother alleged long-standing physical and emotional abuse by the father, supported by photographs of bruising and children's statements.
- •Father denied abuse and offered protective measures (financial support, housing, etc.) if the children were returned.
- •The court considered text messages exchanged between the parents, indicating potential acquiescence by the father to the children remaining in the UK.
- •The children were settled in UK schools and had a close relationship with an older half-sibling (Z) who would remain in the UK.
Legal Principles
Acquiescence under Article 13(a) of the 1980 Hague Convention requires clear and unambiguous consent to the wrongful removal or retention of the child.
Re A (Minors) (Abduction: Acquiescence) [1992] 2 FLR 14; Re S (Abduction: Acquiescence) [1998] 2 FLR 114; Re F (A Minor) (Child Abduction) [1992] 1 FLR 548; Re A (Minors: Abduction) [1991] 2 FLR 241; P v P (Abduction: Acquiescence) [1999] 2 FLR 818; Re H (Abduction: Child of 16) [2000] 3 FCR 404; Re S (Abduction: Acquiescence) [2008] 2 FLR 293
Grave risk of harm under Article 13(b) requires a grave risk of physical or psychological harm or an intolerable situation upon return. The court considers future risks and the efficacy of protective measures.
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
Even if defenses under Article 13 are established, the court has discretion to order return, considering Convention policy and the child's welfare.
Re M [2008] AC 1288
Outcomes
Father's application for the return of the children to Sweden was refused.
The court found both the acquiescence and grave risk of harm defenses established. Despite acknowledging the strong policy favoring return under the Hague Convention, the court considered the serious allegations of domestic abuse, the children's settlement in the UK, their relationship with their older half-sibling, and the lack of sufficient protective measures to mitigate the risk of harm. These welfare considerations outweighed the policy arguments for return.