Wrongful removal or retention of a child

The applicant father, in accordance with the direction of the court, had filed a signed and sworn statement of evidence containing a suite of undertakings, which he was prepared to offer to mitigate the acknowledged risk of his committing physical or emotional harm on the respondent mother and A, a boy aged 4 years and three months. Accordingly, the Family Division allowed the father’s application for a return order, with the effect that A, who had been removed by the mother to England, would be returned to Hungary.

Background

The applicant father and respondent mother were Hungarian nationals. They had one child (A), a boy aged 4 years 3 months. In March 2018, the parties travelled from Germany, where they lived, to Hungary for a short holiday. After a few days the father returned to Germany. However, the mother and A then travelled to England with the intention of not returning to Germany. When the father followed the mother to England, she allegedly informed him that she wanted the relationship to end. In response to that news, the father made an attempt on his own life and was admitted to hospital. When the mother and A visited the father in hospital, he attempted to strangle her. She had been holding A at the time of the assault. While still in hospital the father made another attempt on his own life. Subsequently he returned to Germany, and then moved to Hungary, where he presently lived.

The father made an application, pursuant to the provisions of the Child Abduction and Custody Act 1985 (CACA 1985) (incorporating the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention), and under art 11 of Council Regulation (EC) 2201/2003 (BIIR), seeking the return of A. Unusually he did not seek the return of A to Germany, the country where he and the mother and A had been habitually resident, but to Hungary. There was no dispute that A’s removal from Germany had been wrongful. However, the mother opposed the application on the basis of art 13b of the Hague Convention. She alleged that there was a history of domestic violence and a grave risk that the return of A would expose him to physical or psychological harm. 

The judge started by considering the provisions of art 11.4 of BIIR, which were to the effect that a court could not refuse to return a child on the basis of art 13b of the Hague Convention if it was established that adequate arrangements had been made to secure the protection of the child after his return. During the course of the hearing, which was adjourned to ensure that the relevant undertakings were in place, the judge reviewed his decision having regard to C (Children) (Abduction: Article 13 (b)) ([2019] All ER (D) 02 (Jan)).

Issues and decisions

Whether the father’s application for a return order should succeed.

The father, in accordance with the direction of the court, had filed a signed and sworn statement of evidence containing a suite of undertakings, which he was prepared to offer to mitigate the acknowledged risk. Undertakings included to pay for the mother to return to Hungary with A; not to assault, harass, threaten or molest the mother or the child; and not to remove A from the care and control of his mother, save for the purposes of any agreed contact (see [49], [50] and [56] of the judgment). 

There was incontrovertible evidence of a serious act of violence perpetrated on the mother after the wrongful removal or retention which lent some weight to the mother’s case that it was an abusive relationship. Whether the domestic abuse had been as bad as she said it had been was a matter on which no firm adjudication could be reached. However, she had established that the father had displayed violence to her, both historically and recently (see [46] of the judgment). 

The full list of undertakings materially ameliorated the future risk of harm to the mother and/or A, and they were sufficiently effective to neutralise the mother’s contention that A would be exposed to the grave risk of physical or emotional harm in the event of a return (see [58] of the judgment).

Further, in the present case, the undertakings offered by the father were reinforced by facts that included that the father had notified the relevant social services department in Hungary of the likely return of A, and had indicated his willingness to co-operate with their assessment (see [59] of the judgment). 

With the undertakings in place, it was appropriate to make the order for the return of A to Hungary (see [61] of the judgment). 

It would be an unusual case where the court would order a return to a third state, but it was in principle unobjectionable, and each case would be fact-sensitive. As it was, the mother would be more greatly disadvantaged in the return order being made to Germany - a country where, she said, she had never wanted to live. At least in Hungary she had family and some support (see [51] of the judgment). 

C (Children) (Abduction: Article 13 (b)) [2019] All ER (D) 02 (Jan) applied; O, Re [1994] Fam Law 482 considered; M (abduction: undertakings), Re [1995] 1 FLR 1021 considered; TB v JB (abduction: grave risk of harm) [2000] All ER (D) 2355 considered; W (a child) (abduction: conditions for return), Re [2004] All ER (D) 93 (Jul) considered; D (a child) (abduction: custody rights), Re [2006] All ER (D) 218 (Nov) considered; K (Abduction: Case Management), Re [2010] EWCA Civ 1546 considered; E (Children) (Abduction: Custody Appeal), Re [2012] 1 AC 144 considered; S (a child)(international abduction: subjective fear of risk), Re [2012] All ER (D) 106 (Mar) considered; O v O (abduction: return to third country) [2013] EWHC 2970 (Fam) considered; M (Children) (Republic of Ireland) (Child’s Objections) (Joinder of Children as parties to appeal), Re [2015] All ER (D) 03 (Feb) considered.

Poonam Bhari for the father. 

Naomi Scarano for the mother.

Paul Mclachlan - Barrister.