Re C (Minors) (Abduction: Habitual residence)
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 1999 |
| Date | 12 February 1999 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Nourse, Lord Justice Auld and Lord Justice Ward
Children - abduction from habitual residence - return posed no clear risk of harm - return ordered
In the absence of clear and compelling evidence of grave risk of harm or other severe intolerability, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Cmnd 8281), given effect by the Child Abduction and Custody Act 1985, required a parent, wrongfully retaining her two young children in England, to return them to the jurisdiction of the court of their habitual residence.
The inevitable anxiety and uncertainty of the children's return and the splitting up of their present family unit was not sufficient to satisfy the stringent test which had to be applied to establish a grave risk of psychological harm within of article 13 of the Convention.
The Court of Appeal so held in a reserved judgment allowing a father's appeal from the refusal by Mr Justice Connell in July 1998 to order the return of children to California.
Article 13 of the 1980 Convention provides: ". . . the judicial or administrative authority of the requested State is not bound to order the return of the child if the person . . . (who) opposes its return established that . . . (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation . . . (it) may also refuse to order the return of the child if it finds that the child objects . . . (having) obtained an age and degree of maturity at which it is appropriate to take account of its views".
The father in person; Mr Marcus Scott-Manderson, who did not appear below, for the mother.
LORD JUSTICE WARD said that the parents married in 1988. Their two children were born in 1988 and 1990. The Superior Court of California dissolved the marriage in 1994, giving the parents joint legal custody of the children and ordering that neither should change the residence of the children without the consent of the other or order of the court.
In 1994 the mother married the stepfather and they had a daughter born in 1997. Intense hostility existed between the father and stepfather.
In August 1997 a Californian juvenile court found allegations of serious physical harm of the children by the father to have been established. That decision was not not accepted by the...
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