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Case Name
C v B [2021] EWHC 1369
INCADAT reference
HC/E/UKe 1739
Court
UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice, Family Division
First Instance
The Honorable Mr Justice Cobb
States involved
SPAIN
UNITED KINGDOM - ENGLAND AND WALES
Decision
27 May 2021
Final
Grave Risk - Art. 13(1)(b) | Issues Relating to Return
Return ordered
Guide to Good Practice on Article 13(1)(b) of the 1980 Convention
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442; AT v SS (Abduction: Art 13(b): Separation from carer) [2016] 2 FLR 1102; MB v TB [2019] EWHC 1019 (Fam); G v G [2021] UKSC 9; Re H-N & others [2021] EWCA Civ 448; Re GP (a child: abduction) [2017] EWCA Civ 1677
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SYNOPSIS
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Two children wrongfully removed at ages 3 and 1 – Unmarried parents – Father national of Italy – Mother national of United Kingdom – Joint custody– Children lived in Spain until January 2021 – Application for return filed with the courts of England and Wales on 9 February 2021 – Return ordered – Main issue: Article 13(1)(b) did not apply, the situation was unsatisfactory but not intolerable.
SUMMARY
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Facts
The father was an Italian national who had lived in Spain since childhood. The mother was a British national. The parents met in 2012 and began a relationship. They separated for a period and, in May 2015, the mother returned to Spain to resume the relationship. They live together until January 2021. They had two children, both born in Spain and age 3 (nearly 4) and 18 months at the time of the hearing.
On 8 January 2021 the mother informed the father that she had arranged flights to return to England the following day. The father did not agree to this. On 14 January 2021, the mother took both children to England without the father’s knowledge.
The father filed an application under the 1980 Hague Abduction Convention for the return of the children to Spain. The mother issued proceedings in Spain for sole custody and ‘Guardianship’ of the two children, financial maintenance and leave to relocate to England, offering contact with the father.
The father was unemployed and the mother maintained that she had no means of supporting herself should she and the children return to Spain. She also argued that she suffered domestic abuse, including physical violence.
Ruling
Return ordered. Article 13(1)(b) did not apply as the situation was unsatisfactory but not intolerable. The Judge ruled that the return should take place after the decision of the pending Spanish court hearing.
Grounds
Grave Risk - Art. 13(1)(b)
The mother argued that Article 13(1)(b) applied and that returning the children to Spain would expose them to a grave risk of harm due to the father’s domestic abuse, lack of financial support from him, no real prospect of being able to find accommodation for herself and the children in Spain, and the risk that she would be arrested and separated from the children.
The Judge found that, on all the evidence, the mother failed to demonstrate a grave risk within the meaning of Article 13(1)(b). The proposed arrangements of the mother and children on their return to Spain, including their lack of accommodation and the mother’s prospect of finding work, were unsatisfactory but not intolerable.
The mother’s claims of domestic abuse could be met by a combination of the father’s voluntary undertakings, the assistance of social services in Spain and orders from the Spanish courts.
The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention.
Issues Relating to Return
As the Spanish courts were due to give a ruling in the coming weeks, the return should take place after that decision, scheduled for July 2021.