TKJ (Abduction: Hague Convention (Italy)), Re
[2024] EWHC 198 (Fam)
P (Habitual Residence, Art 13(b) Grave Risk of Harm), Re
19 July 2024
[2024] EWHC 1863 (Fam)
High Court
A dad took his son from Italy to England without permission. A court in England decided the son should go back to Italy because the dad didn't prove it was unsafe for the son to return. The Italian courts are best placed to decide what's best for the boy.
Key Facts
- •Seven-year-old boy, P, wrongfully removed from Italy by his father (F) to the UK.
- •Italian court had suspended parental responsibility of both parents, granting sole responsibility to Naples Social Services (applicant).
- •F removed P from Italy despite the court order, claiming it was a planned holiday.
- •Italian court subsequently refused F's appeal and ordered P to be placed in a community home upon return to Italy.
- •P is currently in UK foster care.
- •F claims P is habitually resident in the UK and that return to Italy poses a grave risk of harm due to potential abuse by the mother's family and alleged corruption within Italian social services.
Legal Principles
Objective of Hague Convention proceedings is prompt return of child to habitual residence for welfare determination.
Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, §48
Burden of proof on respondent to prove exceptions to summary return.
Hague Convention
Definition of wrongful removal under Article 3 of the Hague Convention.
Article 3 of the 1980 Hague Convention
Definition of 'rights of custody' under Article 5 of the Hague Convention.
Article 5 of the Hague Convention
Two-stage approach to determining rights of custody: rights under requesting state law and whether they are rights of custody under Hague Convention.
Hunter v Murrow, NT v LT [2020] EWHC 1903 (Fam)
Foreign court's determination of parental rights treated as conclusive unless clearly out of line with international understanding of Convention.
H v M [2005] EWCA Civ 976
Article 12: Mandatory return if removal less than one year and no Article 13 defences; discretionary return after one year unless child settled.
Article 12 of the Hague Convention
Determining habitual residence is a factual inquiry focused on the child's integration into social and family environment.
Re B (a minor) (habitual residence) [2016] EWHC 2174 (Fam)
Article 13(b): Defence of grave risk of harm requires showing a grave risk of physical or psychological harm or intolerable situation upon return.
Article 13(b) of the Hague Convention
Grave risk of harm under Article 13(b) requires a high threshold of proof and consideration of protective measures in the home country.
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27
Court's role in assessing protective measures is not to micromanage but to ensure they are effective, proportionate, and readily available.
Re L (Article 13: Protective Measures) (No.2) [2023] EWHC 140 (Fam)
Outcomes
Summary return of P to Italy ordered.
Applicant had rights of custody, removal was wrongful, and F failed to establish any exceptions or defences under the Hague Convention.