Re EF (Abduction: Hague Convention (Slovakia))
[2023] EWHC 505 (Fam)
OZ v ML & Ors
2 October 2023
[2023] EWHC 2412 (Fam)
High Court
A father wanted his children back from the UK to Kazakhstan. The mother said they were safer in the UK because the father was controlling and abusive. The judge agreed with the mother and said the kids could stay in the UK because they were happy and safe there, and didn't want to go back.
Key Facts
- •Application for summary return order under the 1980 Hague Convention.
- •Children born in Kazakhstan, Kazakh nationality.
- •Applicant father (OZ) is a Kazakh national, seeks return to Kazakhstan.
- •Respondent mother (ML) is a Kazakh national, resists application, arguing habitual residence in England and Wales.
- •Mother initially claimed consent as an exception, but later withdrew this.
- •Extensive history of proceedings (nearly 9 months).
- •Allegations of domestic abuse, coercive control by the father.
- •Written agreements between parents regarding children's residence and contact.
- •Children's views obtained through a guardian.
- •Mother's unsuccessful asylum application.
- •Proceedings in Kazakh courts.
- •Arrest of mother's brother in Kazakhstan during the English proceedings.
Legal Principles
Habitual Residence under the Hague Convention
In Re X (A Child) [2022] EWCA Civ 1423, A v A (Supreme Court), Mercredi v Chaffe (CJEU)
Harm exception under Article 13(b) of the Hague Convention
Re E (Children) [2012] 1 AC 144
Child's objections under the Hague Convention
H v K (Return Order) [2017] EWHC 1141, Re M (Children) [2015] EWCA Civ 26, Re F (Child’s Objections) [2015] EWCA Civ 1022
Discretion under the Hague Convention
Re M (Zimbabwe) (Baroness Hale), Re G(Children) (CA) [2021] Fam
Issue estoppel
Carl Zeiss Stiftung v Rayner [1967] 1 AC 853
Outcomes
Application dismissed.
Children were habitually resident in England and Wales on 30 December 2022. Even if they were not, the harm and intolerable situation exceptions applied due to the father's coercive control, allegations of domestic abuse, and the children's strong objections to returning to Kazakhstan.