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The parents lived in Austria and had three children, aged between 7 and 9 at the time of the hearing. The parents divorced in 2019 and the children lived with the father and spent four days every fortnight with the mother, plus extended periods during the holidays.

In August 2020 the father sent the mother an email saying he and the children were moving to the UK. The father said that he left Austria the next day. 

On 1 September the mother filed an application under the 1980 Hague Abduction Convention for the return of the child. 

The father argued that the removal of the children was not wrongful under Article 3. In the alternative he submitted that Article 13(1)(b) applied and that returning the children to Austria would expose them to physical or psychological harm or would otherwise place them in an intolerable situation.

Return ordered. The removal was wrongful under Article 3 and there was no grave risk of harm within the meaning of Article 13(1)(b). 

Rights of Custody - Art. 3

The father argued that the removal of the children was not in breach of the mother's rights of custody under Austrian law and was therefore not wrongful under Article 3.

The Judge found that the father did not seek or obtain the mother’s consent to the move, nor did he inform her in time so that she would be able to react by applying to the court or in any way at all. It would not have been impossible or impractical to inform her but the father did not want her to do anything to stop the move. Therefore the father’s removal of the children did not meet any of the necessary pre-requisites under Austrian law and was thus in breach of the mother’s rights of custody pursuant to Article 3. 

Grave Risk - Art. 13(1)(b)

The father said that if the court were to make a return order, he would not accompany the children to Austria. He argued that this would place the children at great risk of harm due to the mother's problems with alcohol and aggression. The Judge did not find the father to be credible witness in relation to the issue of consent and held that his arguments for not returning to Austria were not particularly persuasive. The judge proceeded on the basis that the father was being truthful but held that his assertions were not of a nature, or of sufficient detail or substance that they could constitute a grave risk within the meaning of Article 13(1)(b).

The Judge also stated that the effect upon the children of a separation from their primary carer cannot be said to be so serious as to cause them psychological harm. Nor could it be intolerable for them as they were used to spending periods of up to three weeks away from him. They would be returning to a situation which was familiar to them until there was a hearing in Austria about eight weeks later. 

The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention.