Caselaw Digest
Caselaw Digest

Mother v Father

23 November 2023
[2023] EWHC 3555 (Fam)
High Court
A dad kept his child in the UK after a visit, saying the child would be harmed in Spain. A judge decided the child should go back to Spain because he usually lives there with his mom, and there are ways to protect him from any harm. Even though the child didn't want to go, the judge thought it was best for him to be with his mom.

Key Facts

  • Mother (M) applied for the return of her 12-year-old son, C, from the UK to Spain under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
  • Father (F) wrongfully retained C in the UK after an agreed holiday visit.
  • F argued for non-return under Articles 13(a), 13(b), and 13(2) of the Hague Convention.
  • F alleged that C was at grave risk of physical and psychological harm from M's husband, G, and that C objected to returning to Spain.
  • C alleged physical abuse (choking) by G.
  • M denied the extent of the alleged abuse and offered protective measures (G moving out temporarily).

Legal Principles

Wrongful removal or retention under the Hague Convention.

Hague Convention 1980, Articles 3 and 4

Mandatory return of child within one year of wrongful removal unless exceptions under Article 13 are met.

Hague Convention 1980, Article 12

Article 13(a): Exceptions to return – consent or acquiescence.

Hague Convention 1980, Article 13(a)

Article 13(b): Exceptions to return – grave risk of harm.

Hague Convention 1980, Article 13(b)

Article 13(2): Exceptions to return – child's objection and maturity.

Hague Convention 1980, Article 13(2)

Standard of proof for Article 13(b) is balance of probabilities, but the court considers the limitations of the summary process.

Re E (Children; abduction, custody appeal) [2011] UKSC 27

Evaluation of allegations under Article 13(b) is necessary, even in a paper hearing.

Re C (Children; abduction, Article 13(b) [2018] EWCA Civ 2834

Outcomes

The court ordered the summary return of C to Spain.

The court found that the father failed to establish the exceptions under Article 13(a) and 13(b). While acknowledging C's objections under Article 13(2), the court exercised its discretion to order return, considering the child's best interests, including his habitual residence with the mother and the potential harm from disrupting this established care arrangement. The court also considered the risk of the father's influence on the child's views and the importance of upholding court orders.

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