HR (Parallel Child Abduction and Asylum Proceedings), Re
[2024] EWHC 1626 (Fam)
W (Abduction: Asylum), Re
1 February 2024
[2024] EWHC 189 (Fam)
High Court
A dad wanted to bring his kids back to the US from the UK. The mom didn't want them to go back, saying they were happy and settled in the UK. The judge agreed with the mom, saying the kids were doing well in the UK and it would be too upsetting to move them, even though they don't have permission to stay in the UK long-term.
Key Facts
- •Father applied for the return of four children from the UK to the US under the Hague Child Abduction Convention 1980.
- •Children were allegedly wrongfully removed from the US in July/August 2019.
- •Mother opposed the application, citing habitual residence in the UK, children's settlement, children's objections, and a grave risk of harm upon return.
- •Children's Guardian supported the mother's defenses.
- •Mother made an asylum application in the UK which was refused (August 2023), and she appealed.
- •Allegations of abuse by the father were made by the mother.
- •Significant delay in the father's application was acknowledged and explained.
Legal Principles
Habitual residence is determined at the time of wrongful removal or retention.
Re X (Child Abduction: Habitual Residence) [2022] EWCA Civ 1423
Settlement involves physical, emotional, and psychological elements; stability is key.
Re B [2015] EWHC 2047 (Fam), Re C (Child Abduction: Settlement) [2006] 2 FLR 797
Article 13(b) requires a grave risk of physical or psychological harm or an intolerable situation upon return; burden of proof on the respondent.
Hague Child Abduction Convention 1980, Article 13(b), MB v TB Art 13: Alleged Risk of Oppressive Litigation) [2019] EWHC 1019 (Fam)
Child objection defense requires objection, sufficient maturity, and court discretion.
Hague Child Abduction Convention 1980, Article 13, Re M (Republic of Ireland)(Child’s Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26
Court considers the Hague Convention's policy considerations when exercising discretion.
Re M (Abduction: Zimbabwe) [2008] 1 AC 1288
A Hague Convention application can be determined before an asylum claim, but return is prevented until asylum matters are concluded.
G v G (Secretary of State for the Home Department and others intervening) [2021] UKSC 9
Outcomes
Father's application dismissed.
The court found the children were settled in the UK, considering their length of residence, integration into school and community, and lack of desire to return. While acknowledging the children's lack of legal status and risk of deportation, the court deemed their current stability more significant. The Article 13(b) defense (grave risk of harm) and the child objection defense were not established.