XK v JY
[2023] EWHC 2996 (Fam)
Z (A Child) (1980 Hague Convention), Re
26 October 2023
[2023] EWHC 2696 (Fam)
High Court
A girl was taken from the Czech Republic to the UK by her dad. Her mom wanted her back. The dad said it was unsafe for the girl to return. A judge listened to everyone and decided that even though the girl didn't want to go back, she should because there are ways to make sure she's safe and it's better for her to be with her sister and brother.
Key Facts
- •Mother applied for summary return of her daughter, Z, to the Czech Republic under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention.
- •Z, aged 13, was wrongfully retained in the UK by her father following an agreed summer holiday.
- •Z had lived in the Czech Republic since 2017 and was habitually resident there.
- •Father relied on Article 13(b) of the Hague Convention (grave risk/intolerability and child's objections) as a defence.
- •Father initially raised the defence of Article 13(a) (acquiescence) but withdrew it.
- •Z's objections to returning to the Czech Republic were a central issue.
- •Allegations of physical and emotional abuse by Z's stepfather were made by the father but denied by the mother.
- •A Cafcass report was commissioned to assess Z's wishes and feelings.
Legal Principles
The Hague Convention aims for the prompt return of wrongfully removed children to their habitual residence, unless exceptions under Article 13 apply.
Hague Convention on the Civil Aspects of International Child Abduction, 1980
Article 13(b) allows refusal of return if there's a grave risk of harm or an intolerable situation for the child upon return.
Hague Convention, 1980, Article 13(b)
A child's objections to return are considered, but are not determinative; the court exercises discretion.
Re Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam)
In considering Article 13(b), the court assesses the risk if allegations are true, and how the risk can be mitigated by protective measures.
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27
It is rare for a child to be granted party status in Hague Convention proceedings; a Cafcass report usually suffices unless there is an issue of significant difficulty.
Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51; Re P (Abduction: Child’s Objections) [2020] EWCA Civ 260; Re D (A Child) Abduction: Child's Objections: representation of Child Party [2023] EWCA Civ 1047
Outcomes
The father's application for adjournment to allow separate representation for Z was dismissed.
The court found Z's voice had been adequately heard through the Cafcass report and granting party status would cause undue delay.
The Article 13(b) defence was not upheld.
While acknowledging theoretical risk of harm based on allegations, the court found the evidence insufficient and that protective measures in the Czech Republic were adequate.
A summary return order was granted.
The court balanced Z's objections with other welfare factors, giving greater weight to the Convention's purpose, comity, and the importance of Z's relationship with her siblings and Czech family. The court also considered the context of Z's objections and the protective measures available.
Return to the Czech Republic was to be completed by no later than 23:59 on Thursday 2 November 2023.
This allowed time for Cafcass to speak with Z before her return and for Z to participate in some planned events before departure.