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Case Name
P (Re: Rights of Custody, Settlement, Grave Risk of Harm, Objections) [2024] EWHC 991
INCADAT reference
HC/E/UKe 1689
Court
UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice, Family Division
First Instance
Nageena Khalique KC, sitting as Deputy High Court Judge
States involved
UNITED STATES OF AMERICA
UNITED KINGDOM - ENGLAND AND WALES
Decision
29 April 2024
Final
Habitual Residence - Art. 3 | Settlement of the Child - Art. 12(2) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)
Return refused
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C v C (Abduction: Rights of Custody) [1989] 1 WLR 654; In Re F (A Minor)(Abduction: Custody Rights Abroad) [1995] Fam 224; Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51; Re P (Abduction Rights) [2004] EWCA Civ 971; H v M [2005] EWCA Civ 976; R v P [2017] EWHC 1804 (Fam); Re C (Child Abduction; Settlement) [2006] 2 FLR 797; Cannon v Cannon [2004] EWCA Civ 1330; F v. M and N (Abduction: Acquiescence: Settlement ) [2008] 2 FLR 1270; Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; E v D [2022] EWHC 1216 (Fam); Re A (Children) (Abduction: Article 13(b)) [2021] 4 WLR 99; Re L (Article 13: Protective Measures)(No.2) [2023] EWHC 140; Re D (A Child) (Abduction: Custody Rights) [2007] 1 AC 619; V v C (A Child) (Wrongful Retention: Child’s Objections: Discretionary Return) [2023] EWHC 560 (Fam); Hunter v Murrow [2005] EWCA Civ 976; NT v LT [2020] EWHC 1903 (Fam); Re H (Abduction: Child of Sixteen) [2000] 2FLR 51; Mostyn J in ES v LS [2021] EWHC 2758 (Fam); Re A (Children) (Abduction: Article 13(b)) [2021] 4 WLR 99; Re M (Abduction: Zimbabwe) [2007] UKHL 55
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SUMMARY
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Facts
The Father was a Bolivian and US citizen and the mother a US citizen. They had two children aged 11 and 9 at the time of the hearing.
The Mother arrived in the UK in 2020 without the consent of the Father.
The Father filed an application under the 1980 Hague Abduction Convention for the return of the children.
The Mother argued that the removal was not wrongful within the meaning of Article 3, that the children were settled within the meaning of Article 12, that there was a grave risk of harm/intolerability under Article 13(1)(b) if they were returned to the USA and that the children object to return.
Ruling
Return refused. The Father failed to established that he had rights of custody. Should this finding be wrong the Mother and Guardian established that the children objected to return within the meaning of the Article 13 exception and the Court would exercise their discretion not to order a return.
Grounds
Habitual Residence - Art. 3
The Father did not have rights of custody at the time of removal under Colorado domestic law due to a Permanent Civil Protection Order (“PPO”) which conferred sole decision-making responsibility on the Mother. Therefore, the removal was not wrongful within the meaning of Article 3 of the Convention.
Settlement of the Child - Art. 12(2)
Despite finding that the removal was not wrongful, the Court went on to consider the other exceptions to return raised by the mother.
The children had been in the UK for 3.5 years, they moved house, school and community many times in this period and, on balance, the Court was not persuaded that they demonstrated the necessary elements of settlement within the meaning of Article 12(2).
Grave Risk - Art. 13(1)(b)
On an evaluation of all the evidence, and taking the mother’s allegations at their highest, the Court accepted that there was a grave risk of psychological harm to both children on return to the USA.
However, the Court focused on the future risk of harm and the concrete situation that the children would face on return. With this in mind, the Court was satisfied that sufficient protective measures existed within the American administrative and judicial system to protect the children from any psychological or physical harm.
Objections of the Child to a Return - Art. 13(2)
The Court found that both children objected to returning to the USA and had attained a degree of maturity such that the court must have regard to their wishes and feelings. The Court held that they would have exercised their discretion to refuse to order the return of the children to the USA.