Re EF (Abduction: Hague Convention (Slovakia))
[2023] EWHC 505 (Fam)
XK v JY
24 November 2023
[2023] EWHC 2996 (Fam)
High Court
A mother brought her child to England from Slovakia, claiming the father abused her. A judge decided the child should go back to Slovakia because there are ways to keep the child safe from the father there, even though the father's behavior was concerning. The judge considered the possibility of abuse very seriously, but still felt it was best for the child to return home.
Key Facts
- •Father (applicant) seeks summary return of 5-year-old child, ZK, from England to Slovakia under the Hague Convention.
- •Mother (respondent) wrongfully removed ZK to England from Slovakia in March 2023.
- •Both parents and child are Slovakian nationals.
- •Mother alleges pattern of domestic abuse and violence by father, with ZK present during some incidents.
- •Father denies allegations.
- •Mother raises Article 13(b) defence, claiming return would expose ZK to grave risk of harm.
- •Proceedings in Slovakia are stayed pending this decision.
Legal Principles
Habitual residence of the child
Article 3, Hague Convention 1980
Exercise of custody rights
Article 5, Hague Convention 1980
Summary return order under Article 12 unless exceptions in Article 13 apply.
Article 12 & 13, Hague Convention 1980
Article 13(b) defence: grave risk of physical or psychological harm or intolerable situation upon return.
Article 13(b), Hague Convention 1980
High threshold for Article 13(b) defence; 'grave' and 'intolerable' risks must be established.
In re E (Children) (Abduction Custody Appeal) [2011] UKSC 27; Re S (Abduction : Article 13 (b) Defence) [2012] UKSC 10; KG v JH/ Re IG [2021] EWCA Civ 1123; Re A (Children) (Abduction: Article 13b) [2021] EWCA Civ 939; PvO [2023]EWHC 2128; E v D [2022] EWHC 1216 (Fam)
Court must consider allegations even without full fact-finding hearing, assessing potential risk.
In re E (Children) (Abduction Custody Appeal) [2011] UKSC 27; Re S (Abduction : Article 13 (b) Defence) [2012] UKSC 10; KG v JH/ Re IG [2021] EWCA Civ 1123
Presumption that requesting state authorities are equally adept at child protection unless compelling evidence to the contrary.
Re H (Children) (Child Abduction: Grave Risk) [2003] EWCA Civ 355; G v D (Art. 13 (b):Absence of Protective Measures) [2020] EWHC 1476 (Fam); F v M [2008] 2 FLR 1263
Outcomes
Summary return of ZK to Slovakia ordered.
While the mother established a grave risk of harm to ZK if returned to the father without protective measures, the court found that sufficient protective measures were available in Slovakia and offered by the father to mitigate the risk. The court considered undertakings from the father and protective measures available in Slovakia to be sufficient.