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Case Name
Re BS (A Child) (Child Abduction) [2021] EWHC 2643 (Fam)
INCADAT reference
HC/E/UKe 1738
Court
UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice, Family Division
First Instance
Mr Teertha Gupta QC
States involved
ITALY
UNITED KINGDOM - ENGLAND AND WALES
Decision
14 September 2021
Final
Grave Risk - Art. 13(1)(b)
Return ordered with undertakings offered
Guide to Good Practice on Article 13(1)(b) of the 1980 Convention
R v Solliman and Kayani [2011] EWCA Crim 2871, [2012] 1 WLR 1927; Re W [2018] EWCA Civ 664; Re C (Children) (Abduction: Article 13(b)) [2019] 1 FLR 1045
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SYNOPSIS
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1 child wrongfully removed at age 6 – National of Italy and Brazil – Married parents – Father national of Italy – Mother national of Italy and Brazil – Joint custody – Child lived in Italy until 28 February 2021 – Return ordered – Main issue: Article 13(1)(b) not made out, it was unlikely that the mother and child would be separated and there was no evidence of abuse by the father.
SUMMARY
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Facts
The parents met in Brazil in 2000 and married in Italy the same year. They lived in Italy and had a child, born in 2014, age 6 at the time of the hearing. The father was an Italian national and the mother and child were dual Italian-Brazilian nationals.
In February 2021 the mother took the child to the UK without the father’s knowledge. The father raised this with the Italian authorities later the same day.
The father filed an application under the 1980 Hague Abduction Convention for the return of the child to Italy.
The mother argued that Article 13(1)(b) applied and that returning the child to Italy would mean she is separated from her mother and so place her in an intolerable situation.
Ruling
Return ordered. Article 13(1)(b) was not made out, it was unlikely that the mother and child would be separated and there was no evidence of abuse by the father.
Grounds
Grave Risk - Art. 13(1)(b)
The mother said she would likely be arrested on return to Italy and that the father had applied for an order to suspend her parental rights. She argued that this would mean the child would be separated from her and put in an intolerable situation.
The Judge dismissed these arguments as separation of the mother and cild was unlikely and the father had offered not to support any criminal prosecution. Furthermore, there was no evidence of physical or emotional abuse by the father and any financial difficulties on return would be covered in the short term by the father’s undertakings.
The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention.