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Case Name
JC v DF [2022] EWHC 3546
INCADAT reference
HC/E/UKe 1734
Court
UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice, Family Division
First Instance
Mr D Dias QC (Sitting as a Deputy High Court Judge)
States involved
PORTUGAL
UNITED KINGDOM - ENGLAND AND WALES
Decision
23 June 2022
Final
Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)
Return ordered
Guide to Good Practice on Article 13(1)(b) of the 1980 Convention
Re D (A Child: Abduction Rights and Custody) [2006] UKHL 51; In re K (A Child) (Reunite International Child Abduction Centre intervening) [2014] UKSC 29; NT and RT v HT and MT & others [2021] EWHC 3231 (Fam); Re A, B and C (Children) [2021] EWCA Civ 451; Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407; C (Children) (Abduction: Article 13 (b)) [2018] EWCA Civ 2834; Re K (Abduction: Child’s Objections) [1995] 1 FLR 977; Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; Thomson v Thomson [1994] 3 SCR 551 (20 October 2994); Re C (A Child) (Abduction: Article 13(b)) [2021] EWCA Civ 1354; WF v RJ [2010] EWHC 2909 (Fam); Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26
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SYNOPSIS
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Two children wrongfully removed at ages 6 and 10 – Children were living with the grandmother in Portugal until the mother’s death and before their removal to the UK, grandmother had rights of custody – Children lived in Portugal until 21 July 2021 – Application for return filed with the Central Authority of Portugal on 13 September 2021 – Return ordered – Main issues: Article 13(1)(b), a return to Portugal would have an adverse psychological impact on the children but this would not create a grave risk - Child’s Objections, the elder child had a preference to remain in the United Kingdom but this did not amount to an objection within the meaning of Article 13(2).
SUMMARY
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Facts
The parents had two children, age 7 and 11 at the time of the hearing.
In August 2020 the mother was diagnosed with terminal colon cancer. From the time of her diagnosis the children lived with their mother and the maternal grandmother in Portugal. The father was living in England and did not return to Portugal save for a week or so.
The mother died in June 2021. The father went to Portugal for three weeks and then returned to England with the children, without the knowledge or consent of the grandmother.
The grandmother filed an application under the 1980 Hague Abduction Convention for the return of the children to Portugal.
The father argued that the children were settled in England, that there would be a risk of harm within the meaning of Article 13(1)(b) if they returned, and that the eldest child objected to return.
Ruling
Return ordered. A return to Portugal would have an adverse psychological impact on the children but this would not create a grave risk of harm. Though the elder child had a preference to remain in the United Kingdom, this did not amount to an objection within the meaning of Article 13(2).
Grounds
Grave Risk - Art. 13(1)(b)
The father argued that leaving the UK would put the children at grave risk of harm as they would be separated from him and a place where they are settled. However, the Judge did not find the father’s claims to be credible and found that if a return order was made the father would travel to Portugal with the children. Furthermore, returning them to their home country when they are native speakers, to the home they had lived in with their grandmother for almost a year, did not expose them to a grave risk of psychological harm.
In considering the discretion to order a return, the Judge held that a return to Portugal would have an adverse psychological impact on the children but this would not create a grave risk in terms of Article 13(1)(b).
The Judge also took into account the policy objectives of the Convention in deterring abduction and wrongful retentions.
The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention.
Objections of the Child to a Return - Art. 13(2)
The father said that the elder child objected to returning to Portugal. The Judge found that the child had a preference to be with the father, wherever the father was. This did not amount to an objection to return to Portugal, within the meaning of Article 13(2).
The Judge went on to say that, even if he had found that the child objected to returning to Portugal, it would not have been sufficient in discretionary terms to refuse to order their return. Though the child was significantly mature for the court to take his views into consideration, he was still young at age 11. This affected the weight the court could reliably place on his views.