The Father v The Mother & Ors
[2024] EWHC 2425 (Fam)
K v E
16 November 2023
[2023] EWHC 2890 (Fam)
High Court
A father tried to get his daughter back from the UK to Germany after her mother brought her there. The judge decided the mother could keep the daughter in the UK because the father had agreed to the move, and sending the daughter back would be very bad for her mother's mental health and could put the daughter in danger.
Key Facts
- •Father (German national) applied for the summary return of his 2-year-old daughter (dual German-British nationality) from the UK under the Child Abduction and Custody Act 1985 and the Hague Convention.
- •Mother (British national) brought the child to London from Germany in July 2022.
- •Father claimed the trip was a 4-week holiday; Mother claimed it was a relocation with Father's knowledge and consent.
- •Mother resisted the return order, arguing Father consented to the relocation and that returning to Germany would expose the child to harm due to Mother's mental health and risk of domestic abuse.
- •Extensive evidence presented, including statements from both parents, expert psychiatric report on the Mother, and communications between the parties.
Legal Principles
Consent to removal is a fact-specific exception to the return order under the Hague Convention. Consent must be clear, unequivocal, and relate to the actual circumstances of the removal.
Hague Convention, Re M (Abduction: Consent: Acquiescence) [1999] 1FLR 171, PJ (Children)(Abduction:Consent) [2010] 1 WLR 1237, G (children) [2021] EWCA Civ 139
A return order can be refused under Article 13(b) of the Hague Convention if there's a grave risk that the return would expose the child to physical or psychological harm or place them in an intolerable situation.
Hague Convention Article 13(b), Re E (Children: Custody Appeal) [2011] UKSC 27, Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, MB v TB [2019] EWHC 1019 (Fam), Re A (Children) (Abduction Article 13(b)) 2021 EWCA Civ 939, In re B (Children) [2022] 3 WLR 1315, Re S (A Child: Abduction: Article 13(B): Mental Health) (Rev1) [2023] EWCA Civ 208
The court has discretion whether to order a return even if an Article 13 exception is made out, considering the Convention's objectives against the child's best interests.
M and Another (Children) (Abduction: Rights of Custody) [2007] UKHL 55
Outcomes
Father's application for the summary return of the child was dismissed.
The court found that the father consented to the child's relocation to the UK. Further, the court determined that there was a grave risk that the child's return to Germany would expose her to harm due to the mother's severe mental health issues and the potential for domestic abuse, making a return intolerable for the child. Protective measures suggested by the father were deemed insufficient to mitigate the risk.