In the matter of the Child Y
[2023] EWHC 583 (Fam)
Re Y (A Child) (Abduction: Romania: Art. 13(b))
14 February 2023
[2023] EWHC 1676 (Fam)
High Court
A mom took her son to England without permission. The dad wants him back in Romania. The judge believes the dad might be violent to the mom, but not the son, so the son has to go back to Romania, but not right away, giving the mom some time to try and stay in England legally.
Key Facts
- •Application for return of a 4-year-old boy, Y, to Romania under the 1980 Hague Convention.
- •Mother brought Y to England in September 2022, exceeding a court-permitted holiday.
- •Father has custody rights in Romania, which were being exercised before the removal.
- •Mother defends the application based on Article 13(b) of the Convention, claiming return would expose Y to grave risk of harm.
- •Allegations of domestic violence by the father against the mother throughout their relationship.
- •Mother claims lack of contemporaneous evidence due to being trapped in a cycle of abuse.
Legal Principles
The Hague Convention aims for prompt return of unlawfully removed children.
Article 1 of the 1980 Hague Convention
Removal or retention is wrongful if it breaches custody rights actually exercised.
Article 3 of the 1980 Hague Convention
Return is obligatory if removal was within one year unless Article 13 exceptions apply.
Article 12 of the 1980 Hague Convention
Article 13(b) allows refusal of return if there's grave risk of physical or psychological harm.
Article 13(b) of the 1980 Hague Convention
Article 13(b) has a high threshold; the focus is on the child's risk upon return.
Re IG [2021] EWCA Civ 1123
Court assesses allegations for sufficient detail and substance to constitute grave risk.
Re A (Children)(Abduction: Article 13(b)) [2021] EWCA Civ 939
Generally, authorities in the requesting state are assumed capable of child protection.
G v D (Article 13(b): Absence of Protective Measures) [2021] 1 FLR 36
Outcomes
Mother's Article 13(b) defence not made out; return of Y to Romania ordered.
While allegations of domestic violence against the mother were not dismissed, the court found insufficient evidence of direct risk to Y. Protective undertakings from the father were deemed sufficient to mitigate indirect risks.
Return delayed until after Romanian court decision on mother's relocation application.
To avoid unnecessary action before a pending decision which could impact the outcome