Re Y (A Child) (Abduction: Romania: Art. 13(b))
[2023] EWHC 1676 (Fam)
SD v MM
16 October 2024
[2024] EWHC 2593 (Fam)
High Court
A mom took her children to England from Romania without the dad's permission. The dad wanted them back. The mom said her son with Asperger's would be harmed by going back to a Romanian public school. The judge said the mom could afford a private school and ordered the kids back to Romania.
Key Facts
- •Father (Mr. SD) applied for the summary return of his two children (R and S) to Romania under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
- •Mother (Ms. MM) removed the children from Romania to England in February 2024 without the father's consent.
- •Both parents and children are Romanian citizens.
- •The mother initially relied on the child's objection exception and Article 13(b) of the 1980 Hague Convention (grave risk of harm) to oppose return.
- •Child R has Asperger's Syndrome and had previously attended an international school in Romania but was later moved to a Romanian state school, where the mother claimed he struggled.
- •The mother subsequently withdrew the child's objection defence and relied solely on Article 13(b) in relation to child R's potential psychological harm upon return to a Romanian state school.
- •The mother argued that returning R to a Romanian state school would expose him to a grave risk of psychological harm or an intolerable situation.
- •The mother works remotely and has the financial means to afford private schooling for the children in Romania.
Legal Principles
The general rule under Article 12 of the 1980 Hague Convention is for the summary return of a wrongfully removed child.
1980 Hague Convention, Article 12
Article 13(b) of the 1980 Hague Convention provides an exception to the summary return rule if there is a grave risk that the child's return would expose them to physical or psychological harm or place them in an intolerable situation.
1980 Hague Convention, Article 13(b)
The court must consider whether the assertions of risk are of sufficient detail and substance to potentially constitute a grave risk before determining if the Article 13(b) exception is met.
Re IG (A Child) [2021] EWCA Civ 1123; Uhd v McKay [2019] 2 FLR 1159
The burden of proof lies on the person opposing return to establish the Article 13(b) exception on the balance of probabilities.
Uhd v McKay [2019] 2 FLR 1159
The court must consider the future situation of the child upon return, including any protective measures that can be put in place.
Uhd v McKay [2019] 2 FLR 1159
The 1996 Hague Convention on Parental Responsibility confirms Romania's jurisdiction over welfare matters, and English courts can only take urgent protective measures.
1996 Hague Convention, Article 7
Outcomes
The court ordered the summary return of both children to Romania.
The mother failed to establish the Article 13(b) exception. While the court acknowledged the possibility of psychological harm to child R from attending a Romanian state school, it found that this risk did not meet the 'grave' threshold. The mother had the means to afford private schooling in Romania, making the risk of attending a state school unlikely.