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Nombre del caso
NP v DP [2021] EWHC 3626 (Fam)
Referencia INCADAT
HC/E/UKe 1736
Tribunal
Reino Unido - Inglaterra y Gales
Primera Instancia
Estados involucrados
Estados Unidos de América
Reino Unido - Inglaterra y Gales
Fallo
17 November 2021
Definitiva
Grave riesgo - art. 13(1)(b)
Restitución denegada
Guide to Good Practice on Article 13(1)(b) of the 1980 Convention
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SINOPSIS
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1 child wrongfully removed or retained (disputed) at age 1 – National of UK and USA – Divorced parents – Father national of USA – Mother national of UK and USA – The mother was the primary carer and father had rights of custody – Child lived in USA until April 2019 – Return refused – Main issue: Article 13(1)(b) applied, to order the return of the child would separate him from his mother, who would not travel with him to the USA.
SUMARIO
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Facts
The father was a US citizen and the mother a British citizen. The mother moved to the USA when she was 18 and became a US citizen. The parents married in 2015 and had a son in June 2017, age 4 at the time of the hearing. The child was a dual British and US citizen. The relationship between the parents was very conflictual and they had separated before the child was born.
The mother took the child to England in 20 April 2019. She initially retained some contact and communication with the father until early July 2019, but then went underground and into hiding for two years. She only revealed the whereabouts of herself and the child on 14 July 2021.
The father filed an application under the 1980 Hague Abduction Convention for the return of the child.
The mother argued that Article 13(1)(b) applied as she would not travel to the USA and separating the child from her would expose him to a grave risk of harm or would otherwise place him in an intolerable situation.
Ruling
Return refused. On the very specific facts of the case, to order the return of the child would separate him from his mother, who would not travel with him to the US, and so put him at great risk of harm.
Grounds
Grave Risk - Art. 13(1)(b)
The mother said she would not travel to the USA if a return order was made. She said she was at risk of arrest and detention, had no money with which to litigate and would not be able to work in Illinois because the father and his lawyers had created publicity naming her to be a kidnapper. She would be in constant litigation with the father, which would be emotionally draining for her.
The child had difficulties in-keeping with autistic spectrum disorder and expert evidence said that the child returning to the US without his mother would have a disastrous impact on him. The question was therefore whether in this case the mother would really refuse to return to the US with the child. On the very specific facts of the case the Judge concluded that there was a high likelihood that she would indeed refuse to return. Article 13(1)(b) applied.
The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention.