XK v JY
[2023] EWHC 2996 (Fam)
Re EF (Abduction: Hague Convention (Slovakia))
9 March 2023
[2023] EWHC 505 (Fam)
High Court
A dad wanted his daughter back from her mum in the UK, but the judge said no. The judge decided the girl lived in the UK, the dad had agreed to her being there, and returning her would be dangerous because of the dad's history of abusing the mum. The dad didn't even show up to court!
Key Facts
- •Father (F) is a Slovakian national residing in Slovakia, Mother (M) is a Slovakian national residing in the UK with pre-settled status.
- •Child (EF) was born in the UK in October 2019.
- •M and EF returned to the UK from Slovakia on December 17, 2021.
- •F claims EF's habitual residence was Slovakia and seeks a return order under the Hague Convention.
- •M opposes the return, claiming habitual residence in the UK, F's consent to the removal, and a grave risk of harm to EF if returned to Slovakia.
- •M alleges a pattern of domestic abuse by F, including controlling and coercive behavior, both in Slovakia and the UK.
- •F denies all allegations of abuse and claims M wrongfully removed EF without consent.
- •F did not attend the hearing, whilst M attended and was cross-examined.
Legal Principles
Hague Convention's purpose is the prompt return of wrongfully removed children.
Child Abduction and Custody Act 1985, 1980 Hague Convention
Habitual residence is determined by the child's degree of integration into a social and family environment.
Re. B (A Child) [2016] 4 WLR 156, Re. C (Children) [2019] AC 1
Article 13(a) defence: requires clear and unequivocal consent to the removal.
Re. PJ (Children) [2010] 1 WLR 1236
Article 13(b) defence: requires a grave risk of physical or psychological harm or an intolerable situation upon return.
Re. E (Children) [2012] 1 A.C. 144
In Article 13(b) cases, if allegations of harm cannot be confidently discounted, the court assumes the allegations are true to assess the risk.
Uhd v Mckay [2019] 2 FLR 1159
Controlling or coercive behaviour constitutes domestic abuse and is relevant to Article 13(b).
Re. A-M (A Child) [2021] EWCA Civ 998, Re. H-N [2022] 1 W.L.R. 2681
Outcomes
Application dismissed.
EF's habitual residence was the UK on December 17, 2021. Even if habitual residence was in Slovakia, the court found F consented to the removal (Article 13(a)) and there was a grave risk of harm to EF if returned (Article 13(b)).