HR (Parallel Child Abduction and Asylum Proceedings), Re
[2024] EWHC 1626 (Fam)
KS v CS
31 July 2024
[2024] EWHC 2115 (Fam)
High Court
A mother took her son to live in America. After a car accident, the father took the son to the UK. The son prefers staying in the UK, but a judge decided he must return to America to live with his mother. The judge considered many factors, including whether the removal was legal, what the son wanted and what would be best for his future.
Key Facts
- •KS, K's mother, applied for K's summary return to the US under the 1980 Hague Convention.
- •K is nearly 15 years old and was taken to the UK by his father, CS, after KS and her wife were in a serious car accident.
- •CS argued that KS wasn't exercising custody rights at the time of removal and that K objects to returning to the US.
- •K expressed a preference to stay in the UK with his father, having built a relationship with him after a period of limited contact.
- •The court considered K's maturity, his objections, and the welfare implications of his return to the US.
Legal Principles
Wrongful removal under Article 3 of the 1980 Hague Convention requires breach of custody rights actually exercised at the time of removal.
1980 Hague Convention on the Civil Aspects of International Child Abduction
Temporary incapacity due to illness does not automatically negate the exercise of custody rights.
Re H, Re S (Minors) (Abduction: Custody Rights) [1991] 2 FLR 262; JS v SS 2003 SLT 344; Re A (Abduction: Rights of Custody: Imprisonment) [2004] 1 FLR 1; Re L (A Child) [2005] EWHC 1237 (Fam)
Article 13 allows refusal of return if the child objects and is of sufficient age and maturity.
Article 13 of the 1980 Hague Convention
A child's objection must be genuine and not merely a preference or wish influenced by the abducting parent.
Re M (Republic of Ireland) [2015] EWCA Civ 26; Re F (Child's Objections) [2015] EWCA Civ 1022
Even if a child's objection is established, the court has discretion to order return, considering welfare and Convention objectives.
Re M (Children) [2007] UKHL 55
Outcomes
The court ordered K's return to the USA.
While acknowledging K's objection and the time elapsed since his removal, the court found the wrongful removal and the need to uphold Convention objectives outweighed K's preference to stay in the UK. The court also highlighted the importance of K maintaining a relationship with both parents and the ability of the US courts to fully assess his welfare needs.