W v Z
[2023] EWHC 469 (Fam)
K v M
29 November 2024
[2024] EWHC 3081 (Fam)
High Court
A father wanted his baby back from the UK, where the mother took him. A judge decided the baby should go back to the US, but only if the mother can go back too, and the father promises to help support them both and not to cause trouble. The judge considered if the baby would be in danger or very unhappy if he returned. The key was whether the father agreed to the mother and child staying in the UK, and whether the mother would face trouble entering the US again.
Key Facts
- •Father (K) applied for the summary return of his 18-month-old son (AB) to the USA under the 1980 Hague Convention.
- •Mother (M) opposed the return, arguing AB was habitually resident in the UK, the father consented/acquiesced, and return would expose AB to grave risk of harm.
- •AB is a dual US/UK citizen. Mother took AB to the UK on November 13, 2023.
- •Father initiated divorce and custody proceedings in the US.
- •The mother is British and the child is dual British/US national.
- •The father offered financial support and various undertakings to mitigate potential harm to the child upon return.
Legal Principles
Habitual Residence under the Hague Convention
Various case laws cited, including NMvSM [2023] EWHC 2209 (Fam), A (A Child)(Habitual Residence: 1996 Hague Convention) [2023] EWCA Civ 659, Mercredi v Chaffe (CJEU)
Consent and Acquiescence under Article 13(a) of the Hague Convention
Re PJ (Children) (Abduction: Consent) [2009] EWCA Civ 588, Re B (A Child) (Consent; Acquiescence; Intolerability) [2023] EWHC 2162 (Fam), Re H [1998] AC 72
Grave Risk of Harm or Intolerable Situation under Article 13(b) of the Hague Convention
Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144, Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433, Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, Re W [2018] EWCA Civ 664
Outcomes
Order for AB's return to the USA.
The court found that AB was habitually resident in the US at the time of removal; the father did not consent or acquiesce; and returning AB without his mother would be an intolerable situation, but the return with the mother under the conditions outlined below is acceptable.
Conditional Return Order
The return is conditional upon the mother being granted entry into the USA and the father providing specific undertakings including financial support for the mother and child, and agreeing to a consent order in the US custody proceedings ensuring the mother has custody pending the first inter-partes hearing.