W and E (Habitual Residence), Re
[2024] EWHC 2596 (Fam)
PZ (A Child) (Hague Convention: Art 13(B)), Re
6 March 2024
[2024] EWHC 489 (Fam)
High Court
A mother brought her daughter to the UK from New Zealand. The father wants her back. The court considered if returning would be too risky for the child. The judge said the risks weren't serious enough, especially since the father promised to help the mother with money and to not bother her. So the daughter must return to New Zealand, but the mother has six weeks to prepare.
Key Facts
- •Application under the 1980 Hague Convention and the Child Abduction and Custody Act 1985 for the return of a child, PZ, to New Zealand.
- •Central issue: whether the Art 13(b) Convention exception (grave risk of harm upon return) is engaged.
- •PZ is a young girl approaching her second birthday with dual British and New Zealand nationality.
- •Mother (British citizen) and father (dual New Zealand and Dutch citizenship) met in New Zealand, where PZ was born.
- •Mother brought PZ to the UK from New Zealand in July 2023, initially intending a temporary visit.
- •Mother subsequently applied to New Zealand court for permission to permanently relocate with PZ to the UK.
- •Father applied to the UK court under the Hague Convention for PZ's return to New Zealand.
Legal Principles
Objects of the Hague Convention include securing the prompt return of wrongfully removed children.
1980 Hague Convention, Article 1
Removal or retention is wrongful if it breaches custody rights exercised or exercisable under the law of the child's habitual residence.
1980 Hague Convention, Article 3
A return order is mandated under Article 12 unless an exception under Article 13 applies.
1980 Hague Convention, Article 12
Article 13(b) exception: Return is not mandated if there's a grave risk of physical or psychological harm or an intolerable situation upon return.
1980 Hague Convention, Article 13(b)
In Art 13(b) cases, the court evaluates evidence on the balance of probabilities, considering limitations of the summary process. The risk must be 'grave', not just 'real'. Intolerable means a situation the child shouldn't be expected to tolerate.
Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144; E v D [2022] EWHC 1216 (Fam)
In assessing Art 13(b), the court considers the cumulative effect of allegations, not individually. Protective measures are crucial; if they only *might* ameliorate the risk, the grave risk remains.
Re B (Children) [2023] Fam 77; Re S [2023] 3 FCR 317
Outcomes
The mother's Art 13(b) defence failed; return of PZ to New Zealand ordered.
The court found the cumulative factors raised by the mother did not constitute a grave risk of harm or intolerability, particularly in light of the father's proposed protective measures and the mother's resilience.
Return to be effected by 23:59 on 21 April 2024 (New Zealand time).
A six-week timeframe was deemed appropriate, balancing the Convention's 'forthwith' requirement with the mother's circumstances.
Father to pay a lump sum to the mother in two installments: 50% upon proof of ticket purchase, 50% upon arrival in New Zealand.
To assist the mother with immediate costs of return and resettlement.