Re Y (A Child) (Abduction: Romania: Art. 13(b))
[2023] EWHC 1676 (Fam)
In the matter of the Child Y
9 March 2023
[2023] EWHC 583 (Fam)
High Court
A mother tried to stop her child's return to Romania, arguing it would hurt her child's school and her job. The judge said no, because the child's home is in Romania, and the mother could appeal from there. The judge thought it best the child spend time with both parents.
Key Facts
- •Mother applied for a stay of a summary return order of her child, Y, to Romania under the 1980 Hague Convention.
- •The return order was made on 14 February 2022, and the mother's appeal against a Romanian court's refusal of temporary leave to remain in the UK was dismissed on 22 February 2023.
- •The mother sought a 5-week stay pending determination of her appeal in Romania.
- •Y is a Romanian national habitually resident in Romania.
- •The mother alleged domestic abuse by the father, which he denied; the court accepted undertakings as protective measures.
- •The mother's application for permanent relocation to England and Wales is pending before a Romanian court.
- •The mother argued that Y would lose his school place in England and she would lose her job if returned to Romania.
Legal Principles
The court has discretion to grant a stay, considering the risk of injustice to parties.
Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065
Courts should be slow to stay applications before determination, consistent with the Hague Convention's aims of expedition and priority.
G v G (Secretary Of State for the Home Department) [2021] UKSC 9
A short-term stay to allow appeal court consideration differs from a stay pending appeal decision. A short-term stay is a practical remedy.
Re N (Children: Interim Order/Stay) [2020] EWCA Civ 1070
Article 12 of the Hague Convention mandates 'forthwith' return; stays are exceptional.
BK v NK [2016] EWHC 2496 (Fam)
If appeal prospects are unclear, the court checks if appeal grounds are not fanciful and if a refusal would stifle the appeal.
In re HH (A Child: Stay of Order pending Appeal) [2022] EWHC 3369 (Fam)
Postponement or suspension must align with the Convention's policy, usually to settle affairs, not indefinitely defer return.
E v Q [2019] EWHC 3939 (Fam)
Outcomes
The mother's application for a stay was refused.
The court found no exceptional circumstances justifying a stay. The initial return order had already been extended, and the mother's appeal prospects were uncertain. The court considered Y's welfare, the mother's ability to continue her appeal from Romania, the potential impact on Y's schooling, and the benefits of Y spending time with his father.