K v E
[2023] EWHC 2890 (Fam)
The Father v The Mother & Ors
11 September 2024
[2024] EWHC 2425 (Fam)
High Court
A dad wanted his kids back in Germany after their mum moved them to the UK without telling him. Even though the judge agreed the mum wrongly took the kids, the kids didn't want to go back to Germany, and the judge decided it would be too harmful to force them to go. The kids' feelings and their well-being came first.
Key Facts
- •Father (F) applied for the summary return of his two children, A (14) and Z (3), to Germany under the Child Abduction and Custody Act 1985 (incorporating the 1980 Hague Convention).
- •Children and parents are Ukrainian; relationship has been tumultuous, involving separations and reconciliations.
- •Family moved to Germany in March 2022 due to the Russian invasion; parents separated in May 2022.
- •F started a relationship with another woman, moved in with her and her children, and later married her.
- •Mother (M) moved to England with the children in February 2024 under the Homes for Ukraine scheme without informing F.
- •F had limited contact with the children in Germany before the move, with no contact with A since May 2022 and Z since October 2022.
- •German courts had previously ordered no contact between F and A, and an order for limited contact with Z, which M did not comply with.
- •M opposes the return, arguing F was not exercising custody rights and that a return would cause grave harm.
Legal Principles
Wrongful removal under Article 3 of the 1980 Hague Convention requires breach of custody rights and that those rights were being exercised or would have been but for the removal.
Child Abduction and Custody Act 1985 (incorporating the 1980 Hague Convention)
Article 3(b) of the 1980 Hague Convention requires a 'wide' interpretation of exercising custody rights, focusing on the parent's stance and attitude rather than day-to-day care.
Re H (Minors) (Abduction: Custody Rights); Re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476
Article 13 of the 1980 Hague Convention allows refusal of return if the child objects and has sufficient maturity, considering welfare and Convention considerations.
1980 Hague Convention
In considering objections under Article 13, the court must assess if the objection is authentic and weigh it against other welfare considerations and Convention aims. A child's objection is not determinative but gives rise to a discretion.
In re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as parties to appeal) [2015] EWCA Civ 26
Article 13(b) allows refusal of return if there's a grave risk of physical or psychological harm or an intolerable situation upon return. The court should assume the highest risk of harm and consider mitigating measures.
E v D [2022] EWHC 1216 (Fam)
Outcomes
The court refused the father's application for summary return of both children.
The court found that A's objection to returning to Germany was strong, consistent, and understandable, and overriding it would cause serious harm. Returning Z would also place him in an intolerable situation, separated from his primary caregiver and sister.