W v Z
[2023] EWHC 469 (Fam)
HR (Parallel Child Abduction and Asylum Proceedings), Re
28 June 2024
[2024] EWHC 1626 (Fam)
High Court
Mom took her kids to the UK without Dad's permission. Dad wants them back in the USA. Even though the kids don't want to go back, and Mom says it's dangerous, the judge decided that the kids should go home to the USA because there's no real danger and it's better for them in the long run.
Key Facts
- •Two American boys, A (11.5) and B (9.5), were wrongfully removed from the USA to the UK by their mother on August 4, 2022.
- •The father sought the children's return to the USA under the 1980 Hague Convention and the Child Abduction and Custody Act 1985.
- •The mother resisted return, citing a grave risk of harm under Article 13(b) of the Convention and the children's objections under Article 13(2).
- •The mother had made allegations of sexual abuse against the father, which were rejected by a US court and the UK First-tier Tribunal (FtT).
- •The mother claimed asylum in the UK, which was subsequently refused, and her appeals exhausted.
- •The children, represented by a Children's Guardian, objected to returning to the USA.
Legal Principles
Article 13(b) of the 1980 Hague Convention: A return order may be refused if there's a grave risk the child would face physical or psychological harm or an intolerable situation.
1980 Hague Convention
Article 13(2) of the 1980 Hague Convention: A return order may be refused if a child objects and has sufficient maturity.
1980 Hague Convention
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27: In Hague cases with disputed facts under Article 13(b), courts assess whether allegations, if true, establish a grave risk; if so, they consider protective measures.
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27
Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720: Courts are not bound to follow the Re E approach if they can confidently discount the possibility of an Article 13(b) risk.
Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720
Re A (Children) (Abduction Article 13(b)) [2021] EWCA (Civ) 939: Clarifies the Re E and Re K approaches to Article 13(b).
Re A (Children) (Abduction Article 13(b)) [2021] EWCA (Civ) 939
G v G [2021] UKSC 9: Guidance on managing concurrent Hague and asylum proceedings.
G v G [2021] UKSC 9
Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55: Sets out the approach to discretion under Article 13(2).
Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55
Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139: Summarizes factors considered when exercising discretion under Article 13(2).
Re G (Abduction: Consent/Discretion) [2021] EWCA Civ 139
Re Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam): Summarizes factors considered at the discretion stage under Article 13(2).
Re Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam)
R (AAA (Syria)) v Home Secretary [2023] UKSC 42: Impacts the interpretation of G v G regarding refoulement.
R (AAA (Syria)) v Home Secretary [2023] UKSC 42
Re S (Children) (Child Abduction: Asylum Appeal) [2002] EWCA Civ 843: Prohibition on removal applies to immigration authorities, not Hague Convention obligations.
Re S (Children) (Child Abduction: Asylum Appeal) [2002] EWCA Civ 843
A Local Authority v A [2024] EWFC 110 (Fam): Discusses the impact of post-Brexit changes on refoulement and Hague Convention proceedings.
A Local Authority v A [2024] EWFC 110 (Fam)
Outcomes
The father's application for a return order under the 1980 Hague Convention succeeded.
The mother failed to establish the exceptions under Article 13(b) (grave risk of harm/intolerable situation) and Article 13(2) (children's objections) due to the lack of credible evidence of abuse and the children's unfounded narrative, weighed against the convention's policy and the children's best interests.