HR (Parallel Child Abduction and Asylum Proceedings), Re
[2024] EWHC 1626 (Fam)
T (Father) v G (Mother)
9 February 2024
[2024] EWHC 246 (Fam)
High Court
A dad wanted his child back from the UK after the mum took him there without permission. A court decided it would be too harmful for the child to return, because the mum wouldn't go back and would be very upset, making things hard for the child. So the child stays in the UK, but the dad will be able to see him.
Key Facts
- •Hague Convention proceedings concerning the return of a 3.5-year-old child, T, to the USA from the UK.
- •The father (F) applied for T's return, alleging wrongful retention by the mother (M).
- •M brought T to the UK in February 2023 and did not return him to the USA as planned.
- •M raised an Article 13(b) defence, claiming a grave risk of harm to T if returned to the USA.
- •A previous return order was set aside by the Court of Appeal due to procedural errors.
- •The parties had a volatile and abusive relationship, with allegations of physical and verbal abuse from both sides.
- •M suffers from mental health issues, exacerbated by the relationship and isolation in the USA.
- •M stated she would not return to the USA with T even if ordered to do so.
- •T is well-settled in the UK and thriving.
- •The Texas court made various orders favouring F before the UK hearing, including appointing him temporary sole managing conservator.
Legal Principles
Article 13(b) defence requires proving a grave risk of physical or psychological harm, or an intolerable situation for the child upon return.
1980 Hague Convention
The court must consider the child's situation, not just the source of the risk.
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, Re IG [2021] EWCA Civ 1123
Separation from the primary carer can constitute a grave risk.
Re W [2018] EWCA Civ 664
The court can evaluate allegations, not just accept them at their highest.
Re K (1980 Hague Convention) (Lithuania) [2015] EWCA Civ 720, Re A (A Child) (Article 13(b)) [2021] EWCA Civ 939
A parent's refusal to return with a child is relevant but not determinative; the court must consider whether this creates a grave risk for the child.
C v C (Abduction: Rights of Custody) [1989] 1 FLR 403, TB v JB (Abduction, Grave Risk of Harm) [2001] 2 FLR 515, S v B [2005] 2 FLR 878, Re Q and V [2019] EWHC 490 (Fam), Re A (supra), HCCH 2020 Good Practice Guidance
Delay can impact the Article 13(b) defence.
Re D (supra), Re M [2015] EWCA Civ 26, RS v KS [2009] 2 FLR 1231
Outcomes
The Hague Convention application was dismissed.
The court found that returning T to the USA would create a grave risk of harm due to his separation from his primary carer, M, whose mental health would be severely affected by returning to the USA, even without resuming the relationship with F. The court considered M's genuine fear, the length of time T had been in the UK, and the lack of sufficient protective measures to mitigate the risks.
A contact order was to be made to establish contact between F and T, starting in England and potentially expanding to the USA later.
To facilitate a relationship between father and child despite the refusal of the return order.