BD v BJ
[2023] EWHC 1613 (Fam)
Z v Z
5 July 2023
[2023] EWHC 1673 (Fam)
High Court
A dad wanted to take his kids back to Canada, but the judge said no. The kids are happy in England, and the mom is very sick. Sending them away could hurt them too much. The judge let the dad see the kids, but they stay in England.
Key Facts
- •Father (F) applied for the return of three children (aged 9, 7, and 5) from England to British Columbia, Canada, under the 1980 Hague Convention.
- •Mother (M) opposed the application, citing wrongful retention, habitual residence, acquiescence, grave risk of harm under Article 13(b), and the children's objections.
- •M was diagnosed with Stage 3C colorectal cancer, and the family moved to England for her treatment.
- •The parties disagreed on whether the move to England was temporary or permanent.
- •F returned to Canada in May 2022 and initiated Hague Convention proceedings.
- •The children were happy in England and had integrated into the school system.
- •M stated she would not return to Canada for treatment, even if ordered.
Legal Principles
Wrongful retention under Article 3 of the Hague Convention requires a breach of custody rights and those rights being exercised or would have been but for the removal/retention.
Article 3, 1980 Hague Convention
Habitual residence is determined by analyzing a child's situation and connections with a state to ascertain the requisite degree of integration.
Re B (A Child)(Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam), Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) 2020 EWCA Civ 1105, Re A [2023] EWCA Civ 639
Acquiescence requires a wrongful retention and subsequent acceptance of that retention by the other party.
Not explicitly cited but implied in the judge's reasoning.
A child's objection under Article 13 of the Hague Convention is a factor to consider but not determinative; it requires a genuine objection, not just a preference.
B v P [2017] EWHC 3577
Article 13(b) defence requires demonstrating a grave risk of physical or psychological harm or an intolerable situation upon return; the court considers protective measures and the possibility of amelioration.
Re IG [2021] EWCA Civ 1123
Outcomes
The application for a return order was refused.
Wrongful retention was not established; habitual residence was found to be in England; and Article 13(b) defence was made out due to the grave risk of harm to the children if separated from their mother during her cancer treatment.
A child arrangements order was made outlining contact arrangements between the children and F.
Agreement reached between the parties regarding holiday and half-term contact.