W (Abduction: Asylum), Re
[2024] EWHC 189 (Fam)
P and Q (Rights of Custody, Settlement, Grave Risk of Harm, Objections), Re
29 April 2024
[2024] EWHC 991 (Fam)
High Court
A dad wanted his kids back from the UK to the US. A judge said no, because the dad didn't have the right to decide where the kids live, and the kids were scared of going back because of serious allegations of abuse against the dad. The kids had been in the UK for a long time, so the judge thought it best they stay.
Key Facts
- •Father (F) applied for a summary return order under the 1980 Hague Convention, claiming wrongful removal of his children (P, 11, and Q, 9) from the USA by Mother (M).
- •M raised several Hague Convention defences: wrongful removal, settlement, grave risk of harm, and children's objections.
- •The children had been in the UK for 3.5 years.
- •Serious allegations of domestic abuse, including sexual assault, were made against F by M, supported by some child statements.
- •F was previously subject to a protection order and mandatory restraining order in Colorado.
- •There were significant discrepancies in the evidence presented by both parents.
- •Expert evidence was provided by an attorney specializing in Colorado family law.
Legal Principles
Definition of 'wrongful removal' under Article 3 of the Hague Convention.
Hague Convention 1980, Article 3
Definition of 'rights of custody' under Article 5 of the Hague Convention; autonomous interpretation.
Hague Convention 1980, Article 5; C v C (Abduction: Rights of Custody) [1989] 1 WLR 654; Re F (A Minor)(Abduction: Custody Rights Abroad) [1995] Fam 224
Exceptions to return order under Article 13 of the Hague Convention: grave risk of harm, intolerability, child's objections.
Hague Convention 1980, Article 13
Definition of 'settlement' under Article 12 of the Hague Convention.
Hague Convention 1980, Article 12; Re C (Child Abduction; Settlement) [2006] 2 FLR 797; Cannon v Cannon [2004] EWCA Civ 1330; F v. M and N (Abduction: Acquiescence: Settlement) [2008] 2 FLR 1270
Standard of proof in Article 13(b) cases; role of protective measures.
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; E v D [2022] EWHC 1216 (Fam); Re A (Children) (Abduction: Article 13(b)) [2021] 4 WLR 99; Re L (Article 13: Protective Measures)(No.2) [2023] EWHC 140 (Fam)
Considerations when assessing children's objections under Article 13.
V v C (A Child) (Wrongful Retention: Child’s Objections: Discretionary Return) [2023] EWHC 560 (Fam); Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26; Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55; Re Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam); Re F (Child's Objections) [2015] EWCA Civ 1022
Outcomes
Father's application for a summary return order was dismissed.
The court found that the father did not have rights of custody under Colorado law at the time of the children's removal, rendering the removal not wrongful. Even if the father had rights of custody, the court found the children's objections to returning to the USA to be valid, and that there was a grave risk of harm to the children if returned.