K v E
[2023] EWHC 2890 (Fam)
TKJ (Abduction: Hague Convention (Italy)), Re
2 February 2024
[2024] EWHC 198 (Fam)
High Court
A mom fled Italy with her daughter, claiming the dad abused her. Even though there wasn't a ton of proof, the judge believed the mom and decided it was too dangerous to send the daughter back to Italy because of the risk of the dad hurting the mom and the daughter. The dad lost the case.
Key Facts
- •Father (F) applied for a summary return order under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for his 5-year-old daughter (TKJ), wrongfully removed from Italy to the UK by the mother (M).
- •M alleged years of physical, emotional, verbal, and sexual abuse by F in Italy, citing specific incidents and providing some corroborating evidence (e.g., Instagram messages).
- •F denied all allegations, claiming lack of independent evidence.
- •M's psychiatric evidence supported a diagnosis of adjustment disorder due to the alleged abuse, with a risk of deterioration if returned to Italy.
- •F sent numerous abusive and threatening messages to M and her family after M's arrival in the UK, breaching a non-molestation order.
- •The court considered the interrelationship between Articles 2 and 3 ECHR (right to life and freedom from torture/inhuman treatment) and the Hague Convention.
Legal Principles
Hague Convention's purpose is the prompt return of wrongfully removed children.
Child Abduction and Custody Act 1985, 1980 Hague Convention
Article 13(b) exception to return: grave risk of physical or psychological harm to the child or intolerable situation.
1980 Hague Convention, Article 13(b)
Burden of proof on the removing parent (M) to establish Article 13(b) exception; court may assume allegations true unless confidently discounted.
Re. E, Re. S, Uhd v McKay
Court must consider the cumulative effect of allegations of domestic abuse and the impact on the child's well-being.
Re. A-M, Re. H-N
Court's discretion to return the child after Article 13(b) exception is established; discretion is at large but influenced by the Convention's purposes and child's welfare.
Re. M (Abduction: Zimbabwe)
A return order exposing a victim of domestic abuse to a breach of Articles 2 or 3 ECHR is assessed indirectly through Article 13(b), not directly via Article 20.
G v G
Outcomes
Father's application for a summary return order dismissed.
The court found a grave risk that TKJ's return to Italy would expose her to physical or psychological harm or place her in an intolerable situation due to the ongoing risk of domestic abuse against the mother. Protective measures offered by the father were deemed insufficient to mitigate this risk.