HR (Parallel Child Abduction and Asylum Proceedings), Re
[2024] EWHC 1626 (Fam)
X (Children) (Abduction: Grave Risk: Children’s Objections), Re
6 March 2024
[2024] EWHC 1296 (Fam)
High Court
A mom took her kids from Hong Kong to England without the dad's permission. The dad wants them back. The kids don't want to go back, saying their dad is abusive. The judge said the kids have to go back to Hong Kong but with rules to protect them from the dad's alleged abuse, like the dad having to leave the family home.
Key Facts
- •Three children (A-13, B-nearly 11, C-9) were wrongfully removed from Hong Kong to England by their mother in July 2023.
- •Father applied for their summary return under the 1980 Hague Convention.
- •Mother opposed return citing grave risk of physical/psychological harm and children's objections.
- •Children have autism, ADHD, and ODD diagnoses (A and C).
- •Mother alleges domestic abuse by father, corroborated by children's statements and some evidence.
- •Children strongly object to returning to Hong Kong, citing abuse, onerous schooling, and dislike of father.
- •Father offers undertakings to mitigate risks, including vacating the family home and no tutorial center attendance.
Legal Principles
The welfare of the child is a primary consideration in Hague Convention proceedings, alongside the best interests of children generally.
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27
A court must order the child's return under Article 12 of the 1980 Hague Convention unless the respondent establishes a grave risk of harm or the child objects and is sufficiently mature.
1980 Hague Convention, Articles 12 and 13
The risk of harm must be 'grave' not merely 'real'. The court should consider the future situation and the availability of protective measures.
Re E (citation above), E v D [2022] EWHC 1216 (Fam)
In assessing grave risk, the court considers allegations at their highest potential risk, then assesses if protective measures sufficiently mitigate that risk.
Re E (citation above)
Past behaviour can be relevant to assessing future risk, but is not determinative. The court must consider the circumstances as they would be upon immediate return.
Re C [2021] EWCA Civ 1354
If a potential grave risk is made out, the court must consider how the child can be protected.
Re E (citation above)
A child's objections, if they meet the age and maturity criteria, give the court discretion to refuse a return order. This discretion is 'at large'.
Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55
The child's objections must be genuine and not merely parroting a parent's views. The weight given to objections depends on the child's age, maturity, and the extent of parental influence.
Re M (Republic of Ireland) [2015] EWCA Civ 26
Outcomes
Order for the return of the children to Hong Kong.
While the children's objections are significant and their concerns about abuse are serious, the court finds that sufficient protective measures can be put in place to mitigate the risk of harm. The policy objectives of the Hague Convention – swift return and deterrence of abduction – also weigh heavily in favour of return, particularly given the mother's actions.