High Court Upholds Stringent Standards in Hague Convention Child Abduction Case

Citation: [2023] EWHC 2617 (Fam)
Judgment on

Introduction

The High Court of Justice Family Division case, Re L and S (Application to Set Aside Return Order), considers an application to set aside a return order under the 1980 Hague Convention concerning the wrongful removal of children from Italy to England. The decision delves into several legal principles including the threshold for setting aside a final return order, the concept of “fundamental change of circumstances,” and the bounds of a court’s discretion in child abduction cases under the Hague Convention.

Key Facts

In this case, two children, L and S, were wrongfully removed from Italy to England by their mother, spurring the father’s application for their summary return under the Child Abduction and Custody Act 1985. The initial return order was made after the mother’s defense, invoking Article 13(b) of the Hague Convention amongst others, was not found to be made out, but the court indicated it would have exercised discretion to order return regardless of the specific defense.

Subsequent to the order, the mother sought to set aside the return order on the basis of new criminal proceedings against her in Italy, which she argued constituted a fundamental change of circumstance. The mother’s refusal to return to Italy with the children, fearing arrest and potential detention, intertwined with the potential risk to children if deprived of her care, constituted the crux of her argument.

Fundamental Change of Circumstances

The primary legal principle examined in this case is the threshold for setting aside a return order in circumstances where “no error of the court is alleged.” According to FPR 2010 rule 12.52A and PD12F FPR 2010 paragraph 4.1A, for an order to be set aside, there must be evidence of a fundamental change of circumstances that undermines the basis upon which the original order was made.

Hague Convention Policies and Discretionary Power of the Court

The policies underpinning the Hague Convention, as cited in Re M and Re A, emphasize a summary jurisdiction to expedite decisions and underline the importance of returning a child to their habitual residence so that the appropriate court can decide on their long-term future.

Exception Under Article 13(b)

The exception under Article 13(b) requires a high threshold, considering the severity of risk if the child is returned, and is interpreted strictly. The court should consider whether the risk posed goes beyond what a child might reasonably be expected to bear.

Risk of Prosecution as a Change of Circumstance

Citing decisions such as Re L and Re C, the court acknowledged that the risk of arrest and prosecution for child abduction, in general, does not suffice to meet the threshold required under Article 13(b) of the Hague Convention.

Outcomes

The mother’s application to set aside the return order was dismissed. The court did not find that there was a fundamental change of circumstances but rather that the mother was facing the consequences of her wrongful actions. Moreover, the court indicated that the mother’s refusal to return, though a change in stance, did not objectively undermine the original return order, noting that any risks associated with her return to Italy were manageable and within her control.

Conclusion

In Re L and S (Application to Set Aside Return Order), the High Court adhered to the stringent standards prescribed by the Hague Convention and relevant domestic case law, maintaining the integrity of the initial return order. The case upholds the principle that a change of circumstances, to justify setting aside an order, must be both substantial and fundamentally undermine the original decision’s basis. It reaffirms that the apprehension of legal consequences from wrongful child abduction actions does not meet the high threshold for a fundamental change of circumstances and emphasizes the importance of a parent’s role in mitigating and managing potential risks as part of adherence to international child abduction laws.

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