H v O (Art 13(b) and Domestic Abuse)
| Court | Family Division |
| Judge | Mr Justice Macdonald |
| Judgment Date | 29 January 2025 |
| Neutral Citation | [2025] EWHC 114 (Fam) |
| Date | 29 January 2025 |
| Year | 2025 |
| Counsel | Mr Mark Jarman Kc,Mr Mani Singh Basi,Ms Anita Guha Kc,Ms Naima Asif,Mr Jonathan Evans,Mr Mark Smith |
Neutral Citation Number: [2025] EWHC 114 (Fam)
Case No: FD24P00232
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 29/01/2025
Before:
MR JUSTICE MACDONALD
- - - - - - - - - - - - - - - - - - - - -
Between:
H Applicant
- and -
O First
Respondent
- and -
D, Y and B Second, Third
and Fourth
Respondents
- and -
The Secretary of State for the Home Department Intervenor
- - - - - - - - - - - - - - - - - - - - -
Mr Mark Jarman KC and Mr Mani Singh Basi (instructed by Makin Dixon Solicitors) for
the Applicant
Ms Anita Guha KC and Ms Naima Asif (instructed by Stephensons Solicitors LLP) for the
First Respondent
Mr Jonathan Evans (instructed by Cafcass Legal) for the Second, Third and Fourth
Respondents
Mr Mark Smith (instructed by Government Legal Department) for the Intervenor
Hearing dates: 2 December 2024
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Approved Judgment
This judgment was handed down remotely at 10.30am on 29 January 2025 by circulation to
the parties or their representatives by e-mail and by release to the National Archives.
.............................
MR JUSTICE MACDONALD
This judgment was delivered in private. The judge has given leave for this version of the
judgment to be published on condition that (irrespective of what is contained in the judgment)
in any published version of the judgment the anonymity of the children and members of their
family must be strictly preserved. All persons, including representatives of the media and
legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may
be a contempt of court.
MR JUSTICE MACDONALD
Approved Judgment
H v O (Art 13(b) and Domestic Abuse) [2025] EWHC 114
(Fam)
Mr Justice MacDonald:
INTRODUCTION
1. In this matter I am required to decide, in proceedings brought under the Child
Abduction and Custody Act 1985, whether to make a return order under Art 12 of the
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
(hereafter “the 1980 Hague Convention”) in respect of D, born in May 2016 and now
aged 8, Y, born in August 2018 and now aged 6, and B, born in August 2021 and now
aged 3. The children have been made parties to the proceedings and are represented
in this case by Mr Jonathan Evans of counsel.
2. The applicant is the father of the children, H, represented by Mr Mark Jarman of
King’s Counsel and Mr Mani Singh Basi of counsel. The respondent is the mother of
the children, O, represented by Ms Anita Guha of King’s Counsel and Ms Naima Asif
of counsel. In resisting the father’s application for summary return under Art 12, the
mother relies on the exception set out in Art 13(b) of the 1980 Hague Convention,
namely that there is a grave risk that the children’s return would expose them to
physical or psychological harm or otherwise place them in an intolerable situation,
and with respect to D and Y on the further exception set out in Art 13, namely that
that the children object to being returned and have attained an age and degree of
maturity at which it is appropriate to take account of their views.
3. As in an increasing number of child abduction cases coming before this court (see, for
example, Re Y and K (Children: Summary Return Application: Asylum) [2024]
EWHC 555 (Fam)), and within the context of the children and the mother having
arrived in this jurisdiction in small boats operated by people smugglers, this case is
complicated by the fact that the respondent to the proceedings under the 1985 Act, in
this case the mother, has also made a protection claim to the Secretary of State for the
Home Department. That protection claim names the children as dependants. Matters
are further complicated by the fact that the mother and the children travelled to
England from a safe third country in Europe, namely the Netherlands. In the
circumstances, the Secretary of State for the Home Department has accepted an
invitation to intervene in these proceedings and is represented by Mr Mark Smith of
counsel.
BACKGROUND AND EVIDENCE
4. The mother and the father are Sudanese nationals. The father was born in Sudan on 1
January 1986. The father asserts that in 2003 his village in North Darfur was burnt by
the Janjaweed militias operating in co-operation with the Sudanese government and
his mother and brother were killed. The father contends that he had to flee Sudan in
July 2012 having been subjected to arrest, torture and serious rights violations by the
Sudanese security forces in circumstances where he belonged to the Fur tribe. The
father fled to Egypt, in which jurisdiction he submitted a claim for asylum in any
European country.
5. The respondent mother was born in Sudan on 16 July 1989. In her statement, the
mother asserts that she is a member of a non-Arab Darfuri tribe, Tunjur, and is at risk
of persecution in Sudan. She asserts that she lost her father and two siblings to the
ongoing armed conflict in Sudan (the father contends that her father died of natural
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