A and R (1980 Hague Convention: Return to Australia), Re
[2024] EWHC 2190 (Fam)
OC v CD
13 March 2023
[2023] EWHC 530 (Fam)
High Court
A mom took her kids from Australia to Wales without dad's permission. Dad wants them back. The judge listened to everyone and decided the kids should go back to Australia because the mom's reasons weren't strong enough, and the dad wasn't at fault for the situation.
Key Facts
- •Father seeks summary return of three children (ages 10, 8, 4) from Wales to Australia.
- •Children were habitually resident in Australia before being retained in Wales on April 29, 2022.
- •Mother admits wrongful retention, breaching Father's custody rights.
- •Mother raises three defences: grave risk of harm (Article 13(b)), children's objections (Article 13), and Father's acquiescence (Article 13(a)).
- •Extensive communication between parents, including digital messages, forms part of the evidence.
- •Cafcass officer interviewed the two older children; their views were mixed and potentially influenced by the mother.
- •Mother's testimony deemed unimpressive and not credible by the judge.
Legal Principles
Hague Convention 1980, incorporated into UK law by the Child Abduction and Custody Act 1985.
Child Abduction and Custody Act 1985
Article 13(b) defence: grave risk of harm to the child upon return.
Hague Convention 1980, Article 13(b)
Child's objections to return (Article 13): gateway stage (objection and maturity) and discretionary stage (welfare and Convention considerations).
Hague Convention 1980, Article 13; Re M (Republic of Ireland), B v P
Acquiescence: wronged parent's actual state of mind; onus on abducting parent to prove; contemporaneous words and actions are significant.
Hague Convention 1980, Article 13(a); Re H (Abduction: Acquiescence), P v P, Re S (Abduction: Acquiescence), JM v RM, E v D
Outcomes
Mother's Article 13(b) defence (grave risk of harm) fails.
Judge finds no grave risk; protective measures are available; mother's anxieties are not based on objective risk.
Children's objections considered, but not sufficient to prevent return.
Children's objections, while genuine, are deemed superficial, influenced by mother, and not outweighing Convention considerations.
Mother's acquiescence defence fails.
Father's actions after retention not considered acquiescence; lack of knowledge of legal rights and emotional distress considered.
Order for children's summary return to Australia.
Mother's defences fail; Convention principles favour prompt return; Father's undertakings regarding support and accommodation on return.