AO v LA
| Jurisdiction | England & Wales |
| Court | Family Division |
| Neutral Citation | [2023] EWHC 83 (Fam) |
| Year | 2023 |
2023 Jan 16; 24
Children - Custody rights - Breach - Mother wrongfully removing children from Republic of Ireland to United Kingdom - Father applying under Hague Convention for children’s return - Mother resisting application on grounds of “grave risk” that return would expose children to harm or otherwise place them in intolerable situation - Whether “grave risk” requiring proof that harm or intolerable situation more likely than not - Whether possible for court to find relevant facts without cross-examination -
Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980, scheduled to the Child Abduction and Custody Act 1985F1, the father applied for the summary return of the parties’ two children to the Republic of Ireland following their wrongful removal to the United Kingdom by the mother. The mother resisted the return of the children, contending among other things that there was a “grave risk” that the children’s return would expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of article 13(b) of the Convention. In particular the mother argued that if the children were returned she would remain in the United Kingdom and that no protective measures could be devised which would enable her to consider returning to the Republic of Ireland.
On the father’s application—
Held, granting the application, that the requirement in article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980 that there be a “grave risk” meant that, save in very exceptional situations where the potential adverse consequences were particularly severe, the court would need to be satisfied that, if returned, it was more likely than not that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation; that where article 13(b) of the Convention was relied upon, the court should: (i) ask whether the facts pleaded by the parent relying on article 13(b) would, standing alone, amount to the child being exposed to physical or psychological harm or otherwise placed in an intolerable situation, (ii), if the answer was yes, ask whether those consequences of the return could be nullified by protective measures against the parent who sought the child’s return and (iii), if protective measures would not nullify those consequences or their imposition would be disproportionate or impractical, resolve the main factual disputes between the parties in order to determine if it was more likely than not that were a return ordered the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation; that, since an application for a child’s return was a summary process, it should be possible for the court to make the necessary findings of fact on the written material, without cross-examination; that, in the present case, the mother’s claims, taken at their highest, did not show that it was more likely than not that on their return to the Republic of Ireland the children would be exposed to physical or psychological harm or otherwise placed in an intolerable situation within article 13(b); that, further, although the children objected to being returned for the purposes of the second sentence of article 13, the court should not, on the facts of the present case, exercise its discretion to refuse to order their return; and that, accordingly, an order would be made that the children were to be returned to the Republic of Ireland forthwith (post, paras 23, 35, 37–38, 42, 43–45, 46–49, 59, 78–83, 89–90, 92).
Per curiam. Although the language of article 13(b) gives rise, in theory at least, to a discretion whether to return a child even where the court is satisfied that the terms of article 13(b) have been proved, it is impossible to conceive of any situation where the court might, having made that finding, order a return nonetheless (post, paras 70–72).
The following cases are referred to in the judgment:
American Cyanamid Co v Ethicon Ltd [
B (Children), In re
B v B
BPY v MXV
Browne v Dunn (
Carmarthenshire County Council v Y
Crawford v Washington (
Cream Holdings Ltd v Banerjee
Crowther v Crowther
D (A Child) (Abduction: Rights of Custody), In re
E (Children) (Abduction: Custody Appeal), In re
Gestmin SGPS SA v Credit Suisse (UK) Ltd
H v K (Abduction: Undertakings)
J (A Child), In re
K (Abduction: Case Management), In re
Khan v General Medical Council
Kimathi v Foreign and Commonwealth Office
Les Ambassadeurs Club Ltd v Yu
M (Children) (Abduction: Child’s Objections), In re
M (Children) (Abduction: Rights of Custody), In re
P (Sexual Abuse: Finding of Fact Hearing), In re
Patterson v BTR Engineering (Aust) Ltd (
R (Dutta) v General Medical Council
Ras Al Khaimah Investment Authority v Azima
S-B (Children) (Care Proceedings: Standard of Proof), In re
Sait v General Medical Council
Thomson v Thomson [
No additional cases were cited in argument or referred to in the skeleton arguments.
APPLICATION
The father, AO, applied for an order under article 12 of the Hague Convention on the Civil Aspects of International Child Abduction (1980), as given effect by the Child Abduction and Custody Act 1985, for the summary return to the Republic of Ireland of the parties’ two children, who had been wrongfully removed from that jurisdiction by their mother, LA, on 29 August 2022. On 13 September 2022 the father provided his consent for the outgoing application to the Irish Central Authority and proceedings were issued without notice on 1 November 2022, when disclosure orders were also made to locate the mother. The initial inter partes hearing took place before Morgan J on 22 November 2022, at which time the mother accepted that the removal of the children had been unlawful but indicated that she intended to defend the application on the basis of the two defences/exceptions under article 13 of the Convention.
The judgment was delivered in private and is reported with permission of the judge on condition that the anonymity of the children and the family members be strictly preserved.
The facts are stated in the judgment, post, paras 1, 4–14.
Cliona Papazian (instructed by
Lubeya Ramadhan (instructed by
The court took time for consideration.
24 January 2023. MOSTYN J handed down the following judgment.
1 This is my judgment on the father’s application under the 1980 Hague Convention
2 It is important that I keep at the forefront of my mind that this is a summary process of an interim and procedural character that makes no substantive welfare decisions whatsoever and which at all times respects the primary jurisdiction of the court of the child’s habitual residence before the removal.
3 I did not require the mother to be cross-examined on either defence.
The background4 The mother is 30 years old and of Nigerian descent. From age four until recently she lived in Ireland along with her family. The father is aged 44, also of Nigerian origin and has lived in Ireland since 2007. The parties commenced a relationship and began cohabiting from 2011. Their son J was born on 11 February 2012 and their daughter E on 5 March 2014. Both children were born in Ireland. The relationship was greatly turbulent and the dysfunction was not limited to the parents. According to the father, the maternal...
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